Explanatory Statement
Civil Aviation Regulations 1988
Permission and direction — helicopter special 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 provides that seat belts must also be worn at certain times.
This instrument allows passengers in a helicopter engaged in special 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.
A special operation is described in Schedule 1 as a search and rescue operation, law enforcement operation, firefighting operation or training for one of those operations in which it is necessary to leave or board the helicopter when a landing is not possible or safe. 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 than live-load winching when a landing is not possible or safe. The instrument is, therefore, designed to facilitate such emergency operations (or training for them) by operators whom CASA considers are capable of conducting them safely.
Schedule 2 specifies the operators to whom the instrument applies. Schedule 3 contains a condition that the operations must be carried out in accordance with the instructions, approved by CASA, set out in the operator’s operations manual.
The instrument replaces a previous instrument (CASA 40/07) to modify the list of specified operators in Schedule 1 by including 2 additional operators: Eagle Helicopters Pty Limited and Brazakka Pty Ltd, trading as Cape York Helicopters.
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 replaces a previous instrument to add 2 new operators to the list of those covered by the instrument. A similar instrument would be issued to any appropriate operator who could satisfy CASA that they could safely conduct special operations subject to the same condition.
The instrument commences on the day after it is registered and stops having effect at the end of 30 November 2009.
The instrument has been issued by a delegate of CASA in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA 510/07]