Explanatory Statement
Civil Aviation Regulations 1988
Direction — number of cabin attendants (JetGo Australia Holdings)
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the Act and in the interests of the safety of air navigation.
Under regulation 208 of the Civil Aviation Regulations 1988 (CAR 1988), CASA may give directions as 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 1988 and provides that aircraft carrying more than 36 and not more than 216 passengers must 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 operator to provide 1 cabin attendant for every 50 seats on the aircraft. CASA permits operators to use the internationally accepted ratio in some circumstances, assessed on a case-by-case basis.
Instrument
The direction will allow JetGo Australia Holdings Pty Ltd (the operator) to operate certain Australian registered Embraer EMB 135 series and EMB 145 series aircraft engaged in regular public transport, or charter, operations if it carries 1 cabin attendant for every 50 passenger seats or part of that number.
This cabin attendant ratio applies to EMB 135 series aircraft, other than EMB‑135KE and EMB‑135KL series aircraft, that have a maximum seating capacity of 37 passengers, with type certificate data sheets that permit these ratios to be used. Therefore, if 37 passengers were on board these aircraft, the direction enables the operator to carry 1 cabin attendant where the provisions of subparagraph 6.1 (b) of CAO 20.16.3 would otherwise require 2 cabin attendants to be present.
The cabin attendant ratio also applies to the operator’s EMB-135KL series aircraft that have a type certificate data sheet that provides for a maximum seating capacity of 44 passengers, and EMB 145 series aircraft with a type certificate data sheet that provides for a maximum seating capacity of 50 passengers. However, this direction only applies to these aircraft in 2 circumstances: firstly, where there are not more than 37 passengers seated on board the aircraft; and secondly, where the number of passengers seated on board the aircraft does not exceed a passenger number approved in writing by CASA, which will not exceed the maximum seating capacity provided for under the type data sheet for the aircraft. CASA will reassess the appropriate cabin attendant ratio for the operator’s EMB-135KL and EMB 145 series aircraft following the continued testing of safety procedures in circumstances where the operator carries 1 cabin attendant for up to 50 passengers in these aircraft.
The direction is also subject to further conditions in the interest of aviation safety. Among other matters, the operator must ensure that only physically competent (able-bodied) persons may occupy seats in seat rows designated as emergency exit rows in order to assist, where required, effective evacuation of the aircraft. The operator must also ensure all passengers seated in the emergency exit rows receive and respond to briefing on the operation of emergency exits and the actions required during an emergency. The operator must also ensure that the aircraft can be evacuated in the maximum permitted time of 90 seconds.
CASA has assessed the operator’s safety risk assessment, which satisfactorily addresses concerns regarding the increase in passenger numbers per cabin crew member. CASA is also satisfied the evacuation of a full complement of passengers for the aircraft is able to be achieved in a time of 90 seconds, and that the evacuation procedures adopted by the operator to support its application with the certification criterion for the number of cabin attendants have been demonstrated successfully.
The question of cabin attendant ratios under CAO 20.16.3 is subject to ongoing discussion, and the current instrument will only be in force up to the end of 31 July 2018. Instruments of this type are being issued for limited periods only. It is hoped that there will be a resolution of the issues involved, making the issue of individual directions to operators unnecessary.
Legislation Act 2003 (the LA)
Under section 57A of the LA, an instrument is a legislative instrument for section 8 of the LA if it is declared to be a disallowable instrument under legislation in force before 1 January 2005.
Under regulation 5A of CAR 1988 (which was in force before 1 January 2005), if CASA has issued a CAO, and CASA later issues a direction that affects the operation of the CAO, the later document is declared to be a disallowable instrument.
The instrument affects the operation of subparagraph 6.1 (b) of CAO 20.16.3. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument has been issued at the request of the operator. CASA consulted internally and with the operator before issuing this instrument. Consultations included review of adequate safety risk management plans and systems in support of the operator’s application for the instrument.
Consultation has also taken place on the increase in the number of passengers to cabin attendants in relation to many instruments applying the same ratio. CASA is satisfied that it can safely continue to issue directions under regulation 208 on the basis of the criteria previously mentioned in this statement.
In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
Senate Committee concerns
This direction provides for the operator to meet a standard for cabin crew numbers that differs from that currently promulgated in CAO 20.16.3, but it is considered to be a standard consistent with international safety standards and practice.
The development and preparation of suitable standards with appropriate conditions is also continuing in conjunction with the preparation of new regulations applicable to all air transport operators.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required for this instrument, because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions (OBPR id: 14507).
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 of registration and is repealed at the end of 31 July 2018.
[Instrument number CASA 89/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Direction — number of cabin attendants (JetGo Australia Holdings)
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
The instrument allows JetGo Australia Holdings Pty Ltd (the operator) to operate certain Australian registered Embraer EMB 135 series and EMB 145 series aircraft engaged in regular public transport, or charter, operations if they carry 1 cabin attendant for every 50 passenger seats or part of that number.
The primary purpose of the legislative instrument is to allow the operator, in relevant circumstances, to operate those aircraft with fewer cabin attendants than would otherwise be required by Civil Aviation Order 20.16.3. The direction is subject to conditions, imposed in the interests of aviation safety, about seating and briefing of passengers, and the ability to quickly evacuate the aircraft.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority