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 renews a previous instrument which expired at the end of 31 October 2009.
The instrument commenced on 1 November 2009 and stops having effect at the end of 31 October 2011.
The instrument has been issued by a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA 473/09]
Overview
The Civil Aviation Regulations 1988, amended by the instrument F2009L03888, were enacted to address the safety concerns related to helicopter charter operations, particularly when it comes to boarding and disembarking in the hover. This legislative instrument was introduced by the Civil Aviation Safety Authority (CASA) to provide flexibility for suitably trained and experienced operators, aiming to enhance safety during such operations. The instrument allows passengers to be carried on the undercarriage of a helicopter during hover for boarding or leaving purposes and permits passengers to not wear a seat belt or occupy a seat at heights below 1,000 feet above terrain when the helicopter is in the hover for the same purpose. This regulation operates under the authority granted by section 98 of the Civil Aviation Act 1988, ensuring compliance with the overarching objective of maintaining the safety of air navigation as outlined in the Civil Aviation Regulations 1988.
Scope and Application
The Civil Aviation Regulations 1988, amended by the instrument F2009L03888, applies to the operation of helicopters engaged in charter operations in Australia. Specifically, it pertains to the carriage of passengers on the undercarriage of helicopters and the use of seat belts during certain phases of flight. The regulations are designed to address safety concerns while allowing for operational flexibility for suitably trained and experienced operators during specific conditions, such as when the helicopter is in a hover. The instrument applies nationally across all states and territories, administered by the Civil Aviation Safety Authority (CASA), which is empowered under the Civil Aviation Act 1988 to issue permissions and directions for the safety of air navigation. The regulations allow for exemptions and specific conditions when CASA grants permission for passengers to be carried in parts of the aircraft not designed for passenger accommodation, provided the conditions ensure the safety of air navigation. This instrument is subject to disallowance under the Legislative Instruments Act 2003, indicating its legislative significance and the scrutiny it may receive.
Key Provisions
The primary operative sections of this instrument relate to helicopter charter operations. Section 250 of the Civil Aviation Regulations 1988 (CAR 1988) typically prohibits carrying a person on the wings or undercarriage of an aircraft. However, this instrument allows for exceptions in specific circumstances. For instance, subregulation 250(2) of CAR 1988 permits a person to be carried on or in a part of an aircraft not designed for accommodation, subject to permission from the Civil Aviation Safety Authority (CASA). Subregulation 251(1) of CAR 1988 mandates that seat belts must be worn by all crew members and passengers under certain conditions, such as when the aircraft is flying at less than 1,000 feet above the terrain. Nevertheless, subregulation 251(9) of CAR 1988 allows CASA to direct that seat belts need not be worn in particular circumstances, which applies to helicopter operations as specified in this instrument.
The Act imposes specific obligations on the parties involved in these operations. Operators and pilots must ensure compliance with the conditions specified by CASA when granting permission for passengers to be carried on the undercarriage or not wearing seat belts in certain circumstances. They must also ensure that any helicopter used in these operations is equipped with approved emergency equipment and that it is used in accordance with CASA's directions. The operators and pilots must also ensure that all crew members and passengers occupy seats of an approved type when the aircraft is flying at a height less than 1,000 feet above the terrain, unless otherwise directed by CASA.
There are potential consequences for breaches of the regulations. Under the Civil Aviation Act 1988, violations of the Act or the regulations can result in civil penalties, including fines, or criminal penalties, including imprisonment. The specific penalties depend on the nature and severity of the breach. For example, subregulation 207(2) of CAR 1988 stipulates that an Australian aircraft must not be used in any class of operations unless it is equipped with approved emergency equipment, and failure to comply can result in significant penalties. The Act also provides for the possibility of CASA issuing directions or permissions that may be subject to disallowance by Parliament under the Legislative Instruments Act 2003.