Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — for cabin crew member to use passenger seat
Purpose
The purpose of this instrument is to exempt certain operators from compliance with the standards for cabin crew seats and related equipment under regulation 90.125 of the Civil Aviation Safety Regulations 1998 (CASR 1998) and the Part 90 Manual of Standards (MOS Part 90), when the seat or equipment does not comply with the standards, is the subject of a permissible unserviceability, no alternative compliant seat is provided and a fully functional passenger seat is provided instead.
Legislation — cabin crew seats.
Under subregulations 90.125 (1) and (2) of CASR 1998, the registered operator of an aircraft to which Subpart 90.B of CASR 1998 applies, commits a strict liability offence if he or she operates the aircraft, or permits it to be operated, and while the aircraft is operating, a seat or any related equipment that is provided for a cabin crew member does not meet the standard for cabin crew seats and related equipment set out in MOS Part 90.
Aircraft to which Subpart 90.B of CASR 1998 applies are aircraft other than balloons, airships, sailplanes, powered sailplanes and aircraft with certain special certificates of airworthiness, experimental certificates, special flight permits and provisional certificates of airworthiness.
Legislation — exemptions
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under subregulation 11.160 (3), CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption. Under regulation 11.225, an exemption must be published on the internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement), or if no day is specified, 3 years after commencement.
Legislation — permissible unserviceability
Under subregulation 37 (1), of the Civil Aviation Regulations 1988 (CAR 1988), CASA may approve a defect in, or damage to, an Australian aircraft, or any aircraft included in a class of aircraft, as permissible unserviceability (PUS) for the aircraft. Under subregulation 37 (2) of CAR 1988, CASA may direct that the use of the aircraft, subject to the PUS, is subject to certain conditions.
Background
From time to time before regulation 90.125 of CASR 1998 took effect on 1 December 2010, CASA approved defective cabin crew seats as a PUS. Alternative seating arrangements were made for the relevant cabin crew.
However, the effect of regulation 90.125 is that now an offence is committed if a cabin crew seat and related equipment complying with the MOS Part 90 is not provided to each cabin crew member while the aircraft is operating.
As a matter of practice, in circumstances where, for the short duration of a PUS, a cabin crew seat is not provided, the relevant cabin crew can be seated in a fully functional passenger seat with an acceptable level of aviation safety.
Exemption
The exemption, therefore, exempts operators with a non-compliant cabin crew seat from the standards for the provision of such seats to cabin crew, provided the seat is the subject of a PUS and the cabin crew member is located in a suitable front or back facing passenger seat.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to a class of operators. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instrument Act 2003 (the LIA).
Compatibility with human rights and freedoms
A compatibility statement is at Attachment 1.
Consultation
Consultation under section 17 of the LIA was not considered necessary in this case. It is a remake of instrument CASA EX16/11.
Commencement and making
The exemption commences on the day after registration and stops having effect at the end of 31 January 2015.
The exemption has been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of the CASR 1998.
[Instrument number CASA EX06/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Exemption under regulation 11.160 – for cabin crew member to use passenger seat
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
This legislative instrument exempts operators with a non-compliant cabin crew seat from the standards for the provision of such seats to cabin crew, provided the seat is the subject of a permissible unserviceability and the cabin crew member is located in a suitable front or back facing passenger seat.
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