Explanatory Statement
Civil Aviation Regulations 1988
Direction — number of cabin attendants (Virgin Australia Airlines)
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 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 requirements in subparagraph 6.1 (b) of CAO 20.16.3 have remained in the same form since 1960 and as such represents a 55 year gap since a reassessment of cabin attendant numbers against a criterion of allowable seating rather than passenger numbers. CASA in a report published in 1990, Review of policies and practices for first-of-type certification of imported aircraft, recommended the recognition of the Federal Aviation Administration of the United States of America and the European Aviation Safety Agency certification standards. The recommendation was adopted.
Instrument
The direction replaces a former direction, CASA 128/14. The direction will allow Virgin Australia Airlines Pty Ltd (the operator) to continue to operate an Australian registered Boeing 737-800 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. The cabin attendant ratio applies only to aircraft with maximum seating capacity of 189 passengers and with a type certificate data sheet that permits that ratio to be used.
The type certificate data sheet relates to the design of the floor plan and the seating configuration in relation to the location of exits. CASA does not call for a re-evaluation of the aircraft design, instead, CASA accepts the design criterion. CASA does require operators to demonstrate the safety procedures that are specific to the operator, which are evaluated, thus there is a distinction between the certification criterion and an operator-imposed safety procedure which may, or may not, enhance the evacuation of the aircraft in an emergency evacuation.
Safety improvements in redesign of the “Self-Help” Type III exits by the aircraft manufacturer, Boeing, and safety recommendations from Cranfield University on briefing passengers seated in exit row seating are cause to reassess the emergency evacuation procedures in conjunction with the aircraft certification requirements of the FAA. This seating is referred to as self-help exit rows. The operator has incorporated procedures for the briefing of passengers seated at self-help exit rows as part of the pre‑departure passenger safety briefing, taking into account the conclusions of the Cranfield University research.
The operator has incorporated pre-warned emergency briefings for passengers seated in Type I and III exit rows based on the verbal briefing criteria specified in the Cranfield University research. The revised briefings are acceptable to CASA and are seen as a safety enhancement.
CASA is satisfied the evacuation of a full complement of passengers for the Boeing 737-800 is able to be achieved in a time of 90 seconds. CASA is satisfied that the evacuation procedures adopted by the operator to support their application to operate with the certification criterion of 4 cabin attendants have been demonstrated successfully. The maximum permitted time of 90 seconds is set out as a condition in Schedule 1 of the instrument. CASA does not consider that safety would be compromised if a Boeing 737-800 carried cabin attendants during operations with a complement of 1 cabin attendant to each 50 seats, or part of that number, fitted to the aircraft.
The instrument is subject to conditions in the interest of aviation safety. Among other things, 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 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 June 2016. 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.
Legislative Instruments Act 2003 (the LIA)
Under section 5 of the LIA, subject to sections 6, 7 and 9 of the LIA, a legislative instrument is an instrument in writing that is of a legislative character, and that is or was made in the exercise of a power delegated by the Parliament.
Under subparagraph 6 (d) (i) of 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. Under regulation 5A of CAR 1988, 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 LIA.
Consultation
Consultation has taken place on the issues raised by the new ratio of cabin attendants to passenger seats 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 mentioned in this statement.
This instrument replaces instrument CASA 128/14, which expires at the end of June 2015. The operator applied for the renewal of the direction. 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 LIA.
Senate Committee concerns
This direction provides for the operator to meet a new standard for cabin crew numbers. The new standard 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.
Making and commencement
The direction 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 1 July 2015. It expires at the end of June 2016, as if it had been repealed by another instrument.
[Instrument number CASA 94/15]
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 (Virgin Australia Airlines)
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 legislative instrument allows Virgin Australia Airlines Pty Ltd (the operator) to operate Australian registered Boeing 737-800 series aircraft if there is 1 cabin attendant for every 50 passenger seats or part of that number. In the absence of this instrument, 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 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