Explanatory Statement
Civil Aviation Regulations 1988
CASA 67/19 — Number of Cabin Attendants (National Jet Express) Direction 2019
Purpose
The direction enables National Jet Express Pty Ltd (National Jet Express) to operate, or continue operating, relevant aircraft with 1 cabin attendant for every 50 passenger seats or part of that number, subject to required risk reduction measures.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and for the safety of air navigation. Relevantly, the Governor‑General has made the Civil Aviation Regulations 1988 (CAR).
Under regulation 208 of CAR, the Civil Aviation Safety Authority (CASA) may give directions relating to the operating crew required to be carried on an aircraft, having regard to the safety of air navigation.
Subparagraph 6.1 (b) of Civil Aviation Order (CAO) 20.16.3 was made under regulation 208 of CAR and provides that aircraft carrying more than 36 but not more than 216 passengers shall carry a cabin attendant for each unit of 36 passengers or part of that number.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
The standard in subparagraph 6.1 (b) of CAO 20.16.3 is a unique Australian requirement that is more onerous than the cabin attendant ratio required elsewhere in the world. The ratio permitted in Europe, the USA and most other countries is for an airline to provide 1 cabin attendant for every 50 seats on the aircraft or part of that number. CASA permits operators to use the internationally accepted ratio in certain circumstances, assessed on a case‑by‑case basis.
Instrument
Summary
By directing that National Jet Express can operate relevant aircraft with a cabin attendant to passenger seat ratio of 1:50, the instrument allows National Jet Express to operate, or continue operating:
(a) ERJ 190‑100 IGW and ERJ 190‑100 LR series aircraft with 3 cabin attendants; and
(b) the following aircraft with 2 cabin attendants:
(i) AVRO 146-RJ85 and AVRO 146-RJ100 series aircraft;
(ii) BAe 146‑100, BAe 146-100A, BAe 146‑200, BAe 146-200A and BAe 146‑300 series aircraft;
(iii) DHC‑8‑402 series aircraft.
The instrument also directs National Jet Express to give written notice to CASA at least 14 days before revising any part of its operations manual relating to emergency procedures for relevant aircraft. That direction ensures that CASA maintains visibility of appropriate risk reduction measures in National Jet Express’ operations manual, enforceable under CAR.
Passenger seat numbers — aircraft operated by National Jet Express
The aircraft operated by National Jet Express are configured to have the number of passenger seats, for the aircraft, mentioned in the following paragraphs:
(a) AVRO 146-RJ 85 series aircraft — 82 passenger seats;
(b) AVRO 146-RJ 100 series aircraft — 99 passenger seats;
(c) BAe 146‑100 series aircraft — 71 passenger seats;
(d) BAe 146-100A series aircraft — 71 passenger seats;
(e) BAe 146‑200 series aircraft — 81 passenger seats;
(f) BAe 146-200A series aircraft — 81 passenger seats;
(g) BAe 146‑300 series aircraft — 98 passenger seats;
(h) DHC‑8‑402 series aircraft — 76 passenger seats;
(i) ERJ 190‑100 IGW series aircraft — 108 passenger seats;
(j) ERJ 190‑100 LR series aircraft — 108 passenger seats.
Reasons for structure and differences in expression — paragraphs 4 (a) to (j)
Because there are differences in the maximum passenger seating capacity (however described) and related requirements mentioned in the type certificate data sheet (TCDS) for particular aircraft series, the instrument has included each aircraft series in a separate paragraph of section 4. Also, the expression of the TCDS that sets out the maximum passenger seating capacity (however described) for particular relevant aircraft varies. Therefore, the expression of paragraphs 4 (a) to (j) of the instrument also varies because each of those paragraphs is expressed consistently with the related TCDS.
AVRO 146 RJ85 and AVRO 146‑RJ100 series aircraft
The AVRO 146‑RJ85 and the AVRO 146‑RJ100 series aircraft operated by National Jet Express are configured to have, respectively, 82 and 99 passenger seats. The relevant TCDS issued by the European Aviation Safety Agency (EASA) mentions a maximum seating capacity of 118 individuals, including the crew, for both of those series of aircraft. Paragraphs 4 (a) and (b) of the instrument mention the maximum seating capacity (including crew) for the AVRO 146‑RJ85 and the AVRO 146‑RJ100 series aircraft of 118 individuals. Therefore, the number of passenger seats on the AVRO 146‑RJ85 and the AVRO 146‑RJ100 series aircraft operated by National Jet Express does not exceed the maximum for those series of aircraft mentioned in the relevant EASA TCDS.
BAe 146‑100, BAe 146‑200 and BAe 146‑300 series aircraft
The BAe 146‑100, BAe 146‑200 and BAe 146‑300 series aircraft operated by National Jet Express are configured to have, respectively, 71, 81 and 98 passenger seats. The relevant TCDS issued by the EASA mentions a maximum seating capacity of:
(a) 100 individuals, including the crew, for the BAe 146‑100 series aircraft; and
(b) 118 individuals, including the crew, for both the BAe 146‑200 series aircraft and the BAe 146‑300 series aircraft.
Paragraphs 4 (c), (e) and (g) of the instrument mention the maximum seating capacity (including crew) for the BAe 146‑100, BAe 146‑200 and BAe 146‑300 series aircraft of, respectively, 100, 118 and 118 individuals. Therefore, the number of passenger seats on the BAe 146‑100, BAe 146‑200 and BAe 146‑300 series aircraft operated by National Jet Express is less than the maximum seating capacity for those series of aircraft mentioned in the relevant EASA TCDS.
BAe 146‑100A and BAe 146‑200A series aircraft
The BAe 146‑100A series aircraft operated by National Jet Express are configured to have 71 passenger seats. The Federal Aviation Administration of the United States of America (FAA) TCDS for the BAe 146‑100A series aircraft mentions, relevantly, a maximum of 94 passengers, in accordance with an approved setting configuration.
Paragraph 4 (d) of the instrument mentions, for the BAe 146‑100A series aircraft, maximum passenger seating for 94 passengers in accordance with the approved setting configuration. Therefore, the number of passenger seats on the BAe 146‑100A series aircraft operated by National Jet Express is less than the maximum passenger seating for that series of aircraft mentioned in the relevant FAA TCDS.
The BAe 146‑200A series aircraft operated by National Jet Express are configured to have 81 passenger seats. The FAA TCDS for the BAe 146‑200A series aircraft mentions a maximum of 108 passengers, along with an approved interior configuration or an approved seating configuration. Paragraph 4 (f) of the instrument mentions, for the BAe 146‑200A series aircraft, maximum passenger seating for 108 passengers, along with either of those approved configurations. Therefore, the number of passenger seats on the BAe 146‑200A series aircraft operated by National Jet Express is less than the maximum passenger seating for that series of aircraft mentioned in the relevant FAA TCDS.
DHC‑8‑402 series aircraft
The DHC‑8‑402 series aircraft operated by National Jet Express are configured to have 76 passenger seats. The FAA TCDS for the DHC‑8‑402 series aircraft mentions that the maximum occupants are not to exceed 86, including 2 pilots, a maximum of 3 attendants, and 1 check pilot (80 passengers when fitted with an approved interior). The EASA TCDS for that series of aircraft mentions a maximum passenger seating capacity of 80 passengers, along with an approved cabin interior configuration and an approved seating configuration. Paragraph 4 (h) of the instrument mentions, for the DHC‑8‑402 series aircraft, the maximum passenger seating capacity of 80 passengers, along with those approved configurations. Therefore, the number of passenger seats on the DHC‑8‑402 series aircraft operated by National Jet Express is less than the maximum passenger seating capacity for that series of aircraft mentioned in both the relevant FAA TCDS and the relevant EASA TCDS.
ERJ 190‑100 IGW and ERJ 190‑100 LR series aircraft
The ERJ 190‑100 IGW series aircraft and the ERJ 190‑100 LR series aircraft operated by National Jet Express are each configured to have 108 passenger seats. Similarly:
(a) the EASA TCDS for the ERJ 190‑100 IGW series aircraft and the EASA TCDS for the ERJ 190‑100 LR series aircraft each mentions a maximum passenger capacity of 114 passengers; and
(b) the FAA TCDS for the ERJ 190‑100 IGW series aircraft and the FAA TCDS for the ERJ 190‑100 LR series aircraft each mentions a maximum passenger seating capacity of either 110 or 112 passengers, depending upon the serial number of the particular aircraft.
Paragraph 4 (i) of the instrument mentions, for the ERJ 190‑100 IGW series aircraft, the maximum passenger capacity of 114 passengers. Therefore, the number of passenger seats on the ERJ 190‑100 IGW series aircraft operated by National Jet Express is less than the maximum passenger capacity for that series of aircraft mentioned in both the relevant FAA TCDS and the relevant EASA TCDS.
Paragraph 4 (j) of the instrument mentions, for the ERJ 190‑100 LR series aircraft, the maximum passenger capacity of 114 passengers. Therefore, the number of passenger seats on the ERJ 190‑100 LR series aircraft operated by National Jet Express is less than the maximum passenger capacity for that series of aircraft mentioned in both the relevant FAA TCDS and the relevant EASA TCDS.
Where each relevant TCDS is available
Each relevant EASA TCDS is freely available online by using the search terms “AVRO 146”; “BAE 146”; “DHC 8”; and “ERJ 190” in the search window located at https://www.easa.europa.eu/document-library/type-certificates.
Each relevant FAA TCDS is freely available online by using the search terms “BAE 146‑100A”; “BAE 146‑200A”; “DHC-8-402”; and “ERJ 190-100” in the search window located at https://rgl.faa.gov/Regulatory_and_Guidance_Library/rgMakeModel.nsf/MainFrame?OpenFrameSet.
Legislation Act 2003 (the LA)
The instrument is being registered as a legislative instrument and is, therefore, a legislative instrument in accordance with subsection 8 (3) of the LA.
Paragraph 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. The instrument repeals instrument CASA 06/18 that was registered as a legislative instrument. Because the instrument is a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Initial consultation under section 17 of the LA was undertaken following the issue of the CASA report that recommended the recognition of the FAA and EASA certification standards in relation to setting the ratio of cabin attendants to passenger seats.
The DHC-8-402 series aircraft were added to the instrument at the request of National Jet Express. Similarly, the AVRO 146-RJ85 series aircraft and the AVRO 146‑RJ100 series aircraft were added to the instrument in consultation with National Jet Express. The instrument otherwise continues existing arrangements, and is similar to instruments issued to other operators that appear to be accepted by industry. In those circumstances (and having consulted with National Jet Express), 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 Regulatory Impact Statement (RIS) is not required in this case 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).
Senate Standing Committee on Regulations and Ordinances concerns
The instrument provides for National Jet Express to meet a standard for cabin attendant numbers that differs from the standard currently set down in CAO 20.16.3, but is considered to be a standard consistent with international safety standards and practice.
New suitable standards with appropriate conditions relating to cabin attendant numbers that are applicable to all air transport operators are contained in the Civil Aviation Safety Amendment (Part 121) Regulations 2018, expressed to commence on 25 March 2021.
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. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights as it does not raise any human rights issues.
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 the Civil Aviation Safety Regulations 1998.
The instrument commences on the day after it is registered on the Federal Register of Legislation and will be repealed at the earlier of:
(a) the commencement of the Civil Aviation Safety Amendment (Part 121) Regulations 2018; and
(b) the end of 30 September 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA 67/19 — Number of Cabin Attendants (National Jet Express) Direction 2019
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
Subparagraph 6.1 (b) of Civil Aviation Order (CAO) 20.16.3 provides that aircraft carrying more than 36 but not more than 216 passengers shall carry a cabin attendant for each unit of 36 passengers or part of that number.
The standard in subparagraph 6.1 (b) of CAO 20.16.3 is a unique Australian requirement that is more onerous than the cabin attendant ratio required elsewhere in the world. The ratio permitted in Europe, the USA and most other countries is for an airline to provide 1 cabin attendant for every 50 seats on the aircraft or part of that number. CASA permits operators to use the internationally accepted ratio in certain circumstances, assessed on a case-by-case basis.
The legislative instrument allows National Jet Express Pty Ltd to operate designated aircraft with 1 cabin attendant for every 50 passenger seats or part of that number.
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