Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX109/20 — Passenger Carrying Small Portable Electronic Device during Flight Exemption 2020
Purpose
The purpose of CASA EX109/20 — Passenger Carrying Small Portable Electronic Device during Flight Exemption 2020 (the instrument) is to allow passengers to carry small portable electronic devices (PEDs) on charter and regular public transport operations even when the passenger is required to wear their seatbelt. The instrument would renew the exemption in CASA EX47/17 with some changes for style and clarity but no substantive changes.
Legislation
Section 98 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. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR) and Civil Aviation Regulations 1988 (CAR).
Under subregulation 235 (7) of CAR, the Civil Aviation Safety Authority (CASA) may give directions with respect to the method of loading of persons and goods (including fuel) on aircraft.
Regulation 5 of CAR provides that CASA may issue a direction made under CAR in Civil Aviation Orders. Civil Aviation Order 20.16.3 (as amended) (CAO 20.16.3) is made under subregulation 235 (7) of CAR.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of a Civil Aviation Order.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.160 (3) of CASR, an exemption may be granted on application by a person or on CASA’s own initiative.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Background
Paragraph 9.3 of CAO 20.16.3 provides that all solid articles shall be placed in approved stowage at all times when seatbelts are required to be worn in the cabin in accordance with paragraph 4.1 of CAO 20.16.3. Paragraph 9.4 provides that approved stowage of solid articles means stowing the article under a passenger seat, in an overhead locker or in any other locker or rack designed for stowage of solid-state articles in flight.
Overview of instrument
The instrument will exempt the operator and pilot in command of an Australian registered aircraft engaged in charter or regular public transport operations from complying with the requirements in paragraph 9.3 of CAO 20.16.3 in relation to the stowage of PEDs.
The exemption will only apply in relation to small PEDs, which are defined as PEDs with a mass of less than 1 kg. All other PEDs will have to be stowed in accordance with the requirements mentioned in paragraph 9.3 of CAO 20.16.3.
CASA is satisfied that strict compliance with paragraph 9.3 is not necessary in the case of small PEDs.
The exemption is subject to a number of conditions in order to minimise the risk of injury or damage. A small PED may be carried by a passenger when seatbelts are required to be worn. It must be secured by the passenger, by being held, or secured in the pocket of a garment worn by the passenger or the magazine pocket on the back of a seat. It must not be left unattended or impede emergency egress.
Other PEDs, such as large PEDs or PEDs that impede emergency egress, will not be exempt from paragraph 9.3 of CAO 20.16.3 and must be placed in an approved stowage for solid articles in accordance with the requirements mentioned in that paragraph.
Operators who engage in charter or regular public transport operations must have documented processes and procedures in place that cover the requirements associated with the stowing and securing of PEDs.
In addition, the pilot in command retains the right to issue directions under regulation 309A of CAR for the stowage of small PEDs in approved stowage, when the pilot considers it necessary for the safety of air navigation.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 states the duration of the instrument, which will commence on 1 August 2020 and be repealed at the earlier of the end of: 31 July 2023; or the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018.
Section 3 sets out definitions for the purposes of the instrument.
Section 4 states that the instrument applies in relation to a passenger carrying a small PED during flight on an Australian registered aircraft engaged in a charter or regular public transport operation.
Section 5 states that during the operation, the operator and pilot in command of the aircraft are exempt from complying with paragraph 9.3 of CAO 20.16.3 if the passenger carries the small PED during the times seatbelts are required to be worn by the passenger under paragraph 4.1 of CAO 20.16.3.
Section 6 sets out the following conditions on the exemption in section 5:
(a) the operator or pilot in command of the aircraft must ensure that the carriage of the small electronic device by the passenger does not impede emergency egress from the aircraft during the operation;
(b) the operator or pilot in command of the aircraft must ensure that the passenger does not leave the small electronic device unattended during the operation;
(c) the operator of the aircraft must have documented processes and procedures covering the requirements for passengers carrying small PEDs during the operation.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons, and paragraph 98 (5AA) (b) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of aircraft. The instrument exempts a class of persons, being operators and pilots in command of Australian registered aircraft engaged in a charter or public transport operation, from complying with the provisions in paragraph 9.3 of CAO 20.16.3. The instrument also applies in relation to a class of aircraft, being Australian registered aircraft. The instrument is, therefore, a legislative instrument, and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument renews the exemption in CASA EX47/17 with no substantive changes. CASA EX47/17 renewed a substantially similar exemption in CASA EX102/14. CASA consulted with a number of regular public transport operators in relation to the issue of CASA EX102/14. In that consultation, the terms of the exemption were agreed to without any objections. CASA has also published guidance for industry on the use of PEDs to align the Australian legislative and policy requirements as far as practicable with those of other major aviation agencies, including the Federal Aviation Administration and the European Union Aviation Safety Agency. The terms of the exemption provide relief against the existing Australian legislative requirements to facilitate the implementation of an internationally harmonised standard for the use of PEDs. Given these circumstances, CASA has not undertaken further specific consultation in relation to this instrument.
The exemption will no longer be required once the Civil Aviation Safety Amendment (Part 91) Regulations 2018 commence, as the amendments contain provisions to deal with this issue. Section 2 of the Civil Aviation Safety Amendment (Part 91) Regulations 2018 states that they will commence on 25 March 2021.
CASA is satisfied that no further consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this case, as the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
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 duration
The exemption has been made by a delegate of CASA, relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
The instrument commences on 1 August 2020 and is repealed at the earlier of: the end of 31 July 2023; or the commencement of the Civil Aviation Safety Amendment (Part 91) Regulations 2018.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX109/20 — Passenger Carrying Small Portable Electronic Device during Flight Exemption 2020
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 purpose of CASA EX109/20 — Passenger Carrying Small Portable Electronic Device during Flight Exemption 2020 (the instrument) is to allow passengers to carry small portable electronic devices (PEDs) on charter and regular public transport operations even when the passenger is required to wear their seatbelt. The instrument would renew the exemption in CASA EX47/17 with some changes for style and clarity but no substantive changes.
The instrument will exempt the operator and pilot in command of an Australian registered aircraft engaged in charter or regular public transport operations from complying with the requirements in paragraph 9.3 of Civil Aviation Order 20.16.3 (CAO 20.16.3) in relation to the stowage of PEDs.
The exemption will only apply in relation to small PEDs, which are defined as PEDs with a mass of less than 1 kg. All other PEDs will have to be stowed in accordance with the requirements mentioned in paragraph 9.3 of CAO 20.16.3.
CASA is satisfied that strict compliance with paragraph 9.3 is not necessary in the case of small PEDs.
The exemption is subject to a number of conditions in order to minimise the risk of injury or damage. A small PED may be carried by a passenger when seatbelts are required to be worn. It must be secured by the passenger, by being held, or secured in the pocket of a garment worn by the passenger or the magazine pocket on the back of a seat. It must not be left unattended or impede emergency egress.
Other PEDs, such as large PEDs or PEDs that impede emergency egress, will not be exempt from paragraph 9.3 of CAO 20.16.3 and must be placed in an approved stowage for solid articles in accordance with the requirements mentioned in that paragraph.
Operators who engage in charter or regular public transport operations must have documented processes and procedures in place that cover the requirements associated with the stowing and securing of PEDs.
In addition, the pilot in command retains the right to issue directions under regulation 309A of CAR for the stowage of small PEDs in approved stowage, when the pilot considers it necessary for the safety of air navigation.
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