Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX11/19 — Life jacket standard (Skyplan Australia Pty Ltd) exemption 2019
Purpose
The instrument of exemption allows the use of SOS-6343 personal flotation devices manufactured by Case Investments Pty Ltd (SOS-6343 PFDs), by persons associated with a search and rescue operation, an emergency medical operation or a police operation (collectively, SAR operations) conducted by Skyplan Australia Pty Ltd (trading as Rotor-Lift Aviation) (Skyplan). Those persons include Skyplan, flight crew of helicopters operated by Skyplan, and other personnel engaged in SAR operations.
The exemption is required because the SOS‑6343 PFDs have not been approved for use by the Civil Aviation Safety Authority (CASA) as they include some advanced features that require specialist user training. The SOS‑6343 PFDs are life jackets that otherwise meet CASA’s safety standards.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Regulation 252 of the Civil Aviation Regulations 1988 (CAR) empowers CASA to give directions, in relation to emergency systems and equipment to be provided on aircraft, that CASA considers are necessary to safeguard the aircraft and persons on board. It is an offence for a person to contravene a direction. Under subregulation 5 (1) of CAR, where CASA may issue directions under CAR, it may do so in the form of a Civil Aviation Order (CAO).
CAO 20.11 is expressed to be made under regulations 207, 252 and 253 of CAR and deals with emergency and life saving equipment and passenger control in emergencies. Among other things, for regulation 252 of CAR, paragraph 5.1.1 of CAO 20.11 requires aircraft to be equipped with 1 life jacket for each occupant when the aircraft is operating over water at a specified distance from land. Paragraph 5.1.6 requires that life jackets must: (a) comply with a standard approved by CASA; (b) be of an inflatable type; and (c) except for an infant life jacket — have a whistle fitted.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR), for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of a CAO in relation to matters affecting the safe navigation and operation of aircraft. Subregulation 11.175 (4) provides that, in deciding whether to renew an exemption, CASA must regard the preservation of a level of aviation safety that is at least acceptable as paramount.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if they are 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.
Under regulation 11.225 of CASR, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Background
SOS-6343 PFDs are life jackets that have a Helicopter Emergency Escape Device, equipment stowage, drinking water, rations and a more secure buckling system than normal life jackets. The escape device and harness buckle system is a complex system able to be operated by a trained user. The SOS-6343 PFDs, also referred to as SOS Marine PFD1 constant wear life jackets, are not approved for use by CASA (Airworthiness Bulletin 25-027, which is freely available on the CASA website, refers). The SOS‑6343 PFDs are, however, devices that would otherwise be of a type and quality that meets CASA emergency equipment standards.
Skyplan conducts SAR operations that involve flight crew, trained emergency personnel and other search and rescue personnel (collectively defined as SAR personnel). Due to the nature of these SAR operations, the SAR personnel are required to wear life jackets at all times.
Skyplan has proposed to use SOS-6343 PFDs, which offer an equivalent or greater level of safety for trained users, for the purposes of the SAR operations. Accordingly, Skyplan has requested that an exemption be issued from the requirement that life jackets installed on aircraft be of a standard approved by CASA (subparagraph 5.1.6 (a) of CAO 20.11).
CASA issued instrument CASA EX31/16 granting Skyplan and relevant personnel the requested exemption. That instrument expires at the end of January 2019.
Instrument
Instrument CASA EX11/19 renews the exemption in CASA EX31/16. It applies to persons associated with SAR operations conducted by Skyplan, including Skyplan, its flight crew and other SAR personnel. The instrument exempts the persons from compliance with subparagraph 5.1.6 (a) of CAO 20.11, but only in relation to the requirement that SOS‑6343 PFDs worn by SAR personnel must comply with a CASA standard.
A number of conditions on the exemption are set out in the instrument in the interests of aviation safety.
Skyplan must ensure that the SOS-6343 PFDs have the features specified in the instrument and have passed annual servicing and testing.
Skyplan must ensure that SAR personnel using the SOS-6343 PFDs demonstrate competence in correct use and fitment of SOS-6343 PFDs and the Helicopter Emergency Escape Device, and in helicopter emergency escape procedures. This demonstration is expected to include correct operation of the harness buckle system. The competencies must be demonstrated on a 12-monthly cycle.
Before commencing a SAR operation, Skyplan must ensure the pilot in command of the operation and any SAR personnel using an SOS-6343 PFD have reviewed and are familiar with the conditions of the instrument.
Skyplan must keep records of the demonstration of the competencies required by the instrument, and records of the annual servicing and testing of the SOS-6343 PFDs required by the instrument.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that the regulations may empower CASA to issue an instrument in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Relevantly, subsection 98 (5AA) provides that an instrument made under paragraph (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons or a class of aircraft.
The exemption in the instrument is made under regulation 11.160 of CASR, for paragraph 98 (5A) (a) of the Act, and applies to a range of persons associated with SAR operations. Accordingly, the instrument is registered as a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Skyplan has requested this instrument and has provided CASA with a satisfactory safety case. It is of beneficial effect to the safety of the SAR operations and CASA will consider issuing similar exemptions to other operators should there be a safety need. In these circumstances, it is CASA’s view that no further consultation under section 17 of the LA is necessary or appropriate.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument 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
A Statement of Compatibility with Human Rights is at Attachment 1.
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 CASR.
The instrument commences on 1 February 2019 and is repealed at the end of 31 January 2022.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX11/19 — Life jacket standard (Skyplan Australia Pty Ltd) exemption 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
The instrument of exemption allows the use of SOS-6343 personal flotation devices manufactured by Case Investments Pty Ltd (SOS-6343 PFDs), by persons associated with a search and rescue operation, an emergency medical operation or a police operation (collectively, SAR operations) conducted by Skyplan Australia Pty Ltd (trading as Rotor-Lift Aviation) (Skyplan). Those persons include Skyplan, pilots in command of helicopters operated by Skyplan, and other persons associated with the SAR operations.
The exemption is required because the SOS‑6343 PFDs have not been approved for use by the Civil Aviation Safety Authority (CASA) as they include some advanced features that require specialist user training. The SOS‑6343 PFDs are life jackets that otherwise meet CASA’s safety standards. Use of the SOS‑6343 PFDs without this instrument would be a breach of the requirement in subparagraph 5.1.6 (a) of Civil Aviation Order 20.11 that life jackets must comply with a standard approved by CASA.
The instrument is subject to conditions imposed by CASA in the interests of aviation safety. Those conditions include obligations relating to demonstration of competencies by personnel, maintenance of the SOS‑6343 PFDs and record keeping.
Human rights implications
This legislative instrument engages with the following rights:
- the right to safe and healthy working conditions (Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR))
- the right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (ICCPR))
Right to safe and healthy working conditions
The right to safe and healthy working conditions in Article 7 of the ICESCR is positively engaged because the SOS-6343 PFD provides a higher level of safety for appropriately trained users than life jackets that otherwise meet the CASA standard.
Right to privacy
The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.
The right to privacy is engaged by subsection 6 (5), which requires Skyplan to keep records of the demonstration of the competencies by personnel involved in SAR operations. It is necessary for Skyplan to keep this information to ensure that only competent personnel use the SOS-6343 PFD instead of a CASA-approved life jacket.
The protections provided by the Privacy Act 1988 continue to apply to personal information collected.
The requirements of the legislative instrument are necessary in order to ensure proper administration and enforcement of Australia’s aviation safety system. Any potential limitation on the right to privacy is necessary, reasonable and proportionate in promoting the objective of improving aviation safety.
Apart from the impact on the right to privacy, the exemption in the legislative instrument is beneficial in purpose and content and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.
Civil Aviation Safety Authority