Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX12/19 — Hover Exit and Entry (Helicopter Resources Pty. Ltd.) Instrument 2019
Purpose
The purpose of this instrument is to enable an operator, Helicopter Resources Pty. Ltd. (the operator), to conduct a range of operations that involve a person embarking and disembarking a helicopter while it is in the hover (hover exit or entry) at certain sites where a landing is not possible or safe, or a landing would compromise environmental values.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Regulations 1988 (CAR) and the Civil Aviation Safety Regulations 1998 (CASR).
Civil Aviation Regulations 1988
Subregulation 151 (1) of CAR prohibits the pilot in command of an aircraft in flight from allowing persons to be picked up by the aircraft. However, under subregulation 151 (3), it is a defence if the Civil Aviation Safety Authority (CASA) gave prior written authority for the person to be picked up while the aircraft was in flight and the person was picked up in accordance with any conditions specified in the authority.
Regulation 157 of CAR regulates low flying and, in paragraph 157 (1) (b), prohibits the pilot in command of an aircraft from flying at a height lower than 500 feet outside of a populous area. That prohibition does not apply in specified circumstances, such as actually taking-off or landing at an aerodrome, but hover exit and entry during charter operations does not fit within any of those excluded circumstances.
Subregulation 207 (3) of CAR provides that where CASA approves or directs that an instrument or item of equipment be fitted or carried on an aircraft, a person must carry or use the instrument or item of equipment only in accordance with any direction CASA may give having regard to the safety of air navigation.
Subregulation 215 (9) of CAR makes it an offence for a member of the operations personnel of an operator to fail to comply with an instruction contained in the operator’s operations manual insofar as it relates to the member’s duties.
Subregulations 235 (7) and (7A) of CAR provide that a person must comply with a direction that CASA makes for the purpose of ensuring the safety of air navigation with respect to the method of loading persons or goods on aircraft.
Subregulations 250 (1) and (1A) of CAR prohibit the operator and pilot in command of an aircraft from permitting a person to be carried on anything attached to the aircraft or any part of the aircraft that is not designed for the accommodation of the crew or passengers. Subregulation 250 (2) of CAR provides that CASA may, in respect of certain flights, permit a person to be carried on or in a part of an aircraft that is not designed for the carriage of the crew or passengers. Under subregulation 250 (3), CASA may, in granting such permission, specify conditions subject to which a person may be carried.
Under subregulation 251 (9) of CAR, CASA may direct that a passenger is not required to wear a seat belt when the aircraft is flying at a height of less than 1 000 feet above the terrain.
Paragraphs 3.1 and 4.1 of Civil Aviation Order (CAO) 20.16.3, respectively, require a person to occupy a seat, and to wear a seat belt or harness, while the aircraft is flying at a height of less than 1 000 feet above the terrain.
Subsection 2 of CAO 29.11 contains definitions of rappelling and winching.
Civil Aviation Safety Regulations 1998
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations and CAOs. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations or a CAO.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons and may specify the class by reference to membership of a specified body or any other characteristic. 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 11.170 (3) of CASR, in deciding whether to grant an exemption on application by a person, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
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.
Subpart 11.G of CASR provides for CASA to issue directions in relation to matters affecting the safety of air navigation. Under paragraph 11.245 (1) (a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245 (2) of CASR provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions.
Under paragraph 11.250 (a) of CASR, a direction under regulation 11.245 ceases to be in force on the day specified in the direction. Under regulation 11.255, it is an offence of strict liability to contravene a direction under regulation 11.245.
Background
The operator conducts charter and aerial work operations in helicopters and provides services to various customers, including government agencies. The operator has applied for exemptions and authorisations to allow it to conduct hover exit and entry from helicopters during operations in support of land management activities, infrastructure and mining support and scientific purposes, such as hydro-sampling.
Overview of instrument
The instrument enables the operator to conduct a range of operations that involve a person engaging in hover exit or entry at certain sites where a landing is not possible or safe, or a landing would compromise environmental values. CASA has assessed the operator’s submission for the instrument, including documents and procedures, and is satisfied the instrument will maintain an acceptable level of safety of the operator’s aviation operations.
Content of instrument
Section 1 of the instrument states the name of the instrument.
Section 2 of the instrument states when the instrument commences and is repealed.
Section 3 of the instrument provides definitions for terms used in the instrument. Importantly, it defines the terms hover exit and entry, hover exit and entry operation and permitted purpose, which are used to define the scope of the instrument. The permitted purposes are land management activities, infrastructure or mining support and scientific purposes, such as water sampling.
Section 4 of the instrument states when the instrument applies. It applies to certain hover exit or entry operations conducted by the operator in a helicopter. The operation must be in support of a permitted purpose and be authorised by the relevant owner, controlling authority or land management agency of the site at which the hover exit or entry is to occur, or for the purpose of training for such an operation. However, the operation must not involve winching or rappelling. The instrument uses the definitions of rappelling and winching in CAO 29.11, as in force from time to time.
Section 5 of the instrument grants an exemption to the operator and its pilots in command from the requirement in paragraph 157 (1) (b) of CAR that the pilot must not fly at a height lower than 500 feet outside of a populous area. It only applies to the extent that flight at a lower height is necessary to enable a person to engage in a hover exit or entry for the purpose of a hover exit or entry operation. It does not apply to the period of the operation during which the helicopter is in transit to or from the location of the hover exit or entry.
Section 6 of the instrument is a written authority under subregulation 151 (3) of CAR allowing a person to be picked up while a helicopter is in flight during a hover exit or entry operation. It only applies to the extent necessary at the time to enable the person to board the helicopter for the purpose of the operation.
Section 7 of the instrument is a permission under subregulation 250 (2) of CAR which permits a person to be carried on the undercarriage of the helicopter (i.e. a part of an aircraft that is not designed for the carriage of the crew or passengers) during a hover exit or entry operation in limited circumstances. The person may be carried on the undercarriage only if the helicopter is hovering where a hover exit or entry is to take place and being carried on the undercarriage enables the person to engage in the hover exit or entry.
Section 8 of the instrument is a direction under subregulation 251 (9) of CAR. It allows a person not to wear a seat belt if that would enable the person to engage in a hover exit or entry for the purposes of a hover exit or entry operation and the helicopter is established in the hover at the height at which the hover exit or entry will take place. For a hover exit, the person will need to wear a seat belt until the helicopter is hovering at the height at which the person is to leave the helicopter. For a hover entry, the person is required to wear a seat belt before the helicopter ascends from the height at which the person entered the helicopter.
Section 9 of the instrument grants an exemption to a person engaging in a hover exit or entry for the purpose of a hover exit or entry operation. The person is exempt from complying with the directions in paragraphs 3.1 and 4.1 of CAO 20.16.3 that require a person to occupy a seat, and to wear a seatbelt or harness, while the aircraft is flying at a height of less than 1 000 feet above the terrain.
Section 10 of the instrument issues directions under regulation 11.245 of CASR that are necessary in the interests of the safety of air navigation.
Subsection 10 (2) limits the circumstances in which the operator and its pilots may conduct a hover exit or entry operation. They may only do so if a normal landing is not possible or would not be safe, or at a site that has environmental values that would be severely compromised by landing the helicopter there. These limitations are in addition to those in the definition of hover exit or entry operation in section 3 of the instrument.
Subsection 10 (3) requires the operator and its pilots to ensure that only the operating crew and persons who will be, are or were engaging in a hover exit or entry are carried on the helicopter.
Subsection 10 (4) requires the operator to include a copy of the instrument in its operations manual. Subregulation 215 (6) of CAR requires the operator to give a copy of its operations manual to its personnel. Subsection 10 (4) also requires the operator to provide a copy of the instrument to any person to be carried on a helicopter to conduct a hover exit or entry before the operation commences.
Subsection 10 (5) requires the operator to give CASA 14 days’ notice of any proposed changes to its operations manual that would affect procedures or instructions for hover exit or entry conducted for the purpose of a hover exit or entry operation. That direction ensures that CASA maintains visibility of appropriate risk reduction measures in the operator’s operations manual. A note under this provision alerts readers to the offence provision in subregulation 215 (9) of CAR that requires compliance with instructions in the operations manual.
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. The exemption in section 9 of the instrument exempts a class of persons, being persons who engage in hover exit or entry for the purposes of a hover exit or entry operation conducted by the operator, from complying with the provisions in regulations 207 and 235 of CAR. 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 has been made at the request of the operator. 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 instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for directions, permissions and 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 commencement
This 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 the day after it is registered 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 EX12/19 — Hover Exit and Entry (Helicopter Resources Pty. Ltd.) Instrument 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
This legislative instrument grants authorisations and exemptions to Helicopter Resources Pty. Ltd., its pilots and passengers to enable the conduct of certain types of helicopter operations that involve a person embarking and disembarking while the helicopter is in the hover at certain sites where a landing is not possible or safe, or a landing would compromise environmental values.
The purpose of the instrument is to, in limited circumstances, remove legislative restrictions that would otherwise prevent such operations. The instrument also contains directions in the interests of 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