Explanatory Statement
Civil Aviation Regulations 1988
Civil Aviation Safety Regulations 1998
CASA EX127/18 — Carriage of Children with a Serious Medical Condition (Virgin Australia Airlines) Instrument 2018
Purpose
The purpose of this instrument is to enable Virgin Australia Airlines Pty Ltd (VAA) to carry on its aircraft children who have serious medical conditions without them having to occupy their own seat and use the kind of seat belt worn by other passengers. A child must weigh less than 16 kg and the medical condition must prevent him or her from sitting upright unaided.
The instrument exempts these children from the requirement in subregulation 251 (1) of the Civil Aviation Regulations 1988 (CAR) to wear seat belts in certain circumstances during flight, and includes Civil Aviation Safety Authority (CASA) directions to VAA that are designed to ensure a child’s safety, including a direction that VAA must ensure that each child wears an approved infant seat belt as a restraint whilst sitting on an accompanying adult’s lap.
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 Safety Regulations 1998 (CASR) and CAR.
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. Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons. Subregulation 11.175 (4) of CASR provides that in deciding whether to renew 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.
Under subregulation 251 (1) of CAR, subject to subregulation 251 (2), it is an offence of strict liability for crew members and passengers not to wear seat belts during take-off and landing, during an instrument approach, when the aircraft is flying at a height of less than 1,000 feet above the terrain and at all times in turbulent conditions.
Under subregulation 251 (5) of CAR, subject to subregulation (6), the operator of an aircraft shall detail a member of the crew to ensure that a seat belt or safety harness is worn by each occupant of the aircraft during the times specified in subregulation 251 (1), and to ensure that each belt or harness is adjusted to fit the wearer without slack.
Under subregulation 215 (3) of CAR, CASA may give directions requiring an operator to include particular information, procedures and instructions in the operator’s operations manual. Under subregulation 215 (3A), it is an offence to contravene a direction. Also, under subregulation 215 (9), the operations personnel of the operator must comply with all instructions contained in the operations manual that apply to their activities.
Background
An exemption was first given in 2007 to Virgin Blue Airlines Pty Ltd, VAA’s predecessor, to enable children suffering from a serious medical condition preventing them from sitting upright unaided to be carried in Virgin Blue’s Boeing 737-700/800 or Embraer 170/190 aircraft (CASA EX40/07). In mid-2014, VAA was granted an exemption (CASA EX46/14) from subregulation 251 (1) of CAR that allowed the operator to carry these children in VAA’s Boeing 737-700/800, Airbus 330 and Embraer 190 type aircraft. That instrument repealed and remade instrument CASA EX66/11. In 2015, VAA was again granted a similar exemption (CASA EX187/15) that allowed such a child to be carried on any aircraft operated by VAA in accordance with VAA’s operations manual. CASA EX187/15 expires at the end of October 2018.
A further exemption is necessary so that VAA can continue to carry children suffering from serious medical conditions who cannot wear adult seat belts. Like other children, these children may need to be flown in passenger aircraft for many reasons, for example, to access family, hospitals or other medical treatment.
Overview of instrument
This instrument exempts a relevant child who is flying in an aircraft operated by VAA, from the requirement in subregulation 251 (1) of CAR for a passenger to wear the kind of seat belt that must be worn during take-off and landing, during an instrument approach, when the aircraft is flying at less than 1,000 feet and during turbulent conditions. Instead, the child must wear an approved infant seat belt as a restraint and sit in an accompanying adult’s lap. Relevant child is defined in the instrument as meaning a person who is at least 2 years old and not more than 12 years old, who has a serious medical condition preventing the child from sitting upright unaided whom VAA is satisfied on reasonable grounds weighs less than 16 kg and is fit to travel.
The instrument also exempts VAA from the requirement, in subregulation 251 (5) of CAR, for operators to detail a member of the crew to ensure that a seat belt or safety harness is worn by each occupant of the aircraft during the specified times and is adjusted to fit without slack. As the child will not be wearing a seat belt at these times, VAA requires an exemption from this provision.
The exemptions apply in relation to all aircraft types in VAA’s fleet, as approved in VAA’s Air Operator’s Certificate and covered by the procedures in VAA’s operations manual.
The instrument also includes directions issued by CASA to VAA in the interests of the safety of air navigation. The directions include that VAA must ensure that its operations manual includes procedures for the carriage of relevant children on its aircraft, and that a medical practitioner provides a statement regarding the child’s medical condition. VAA may refer to this statement when deciding, for the definition of relevant child, if it is satisfied on reasonable grounds that the child weighs less than 16 kg and is fit to travel.
CASA has assessed the operator’s case for the issue of the instrument and considers that issuing the instrument will have no impact on the safety of the operator’s operations.
Content of instrument
Section 1 sets out the name of the instrument.
Section 2 sets out the duration of the instrument. The instrument commences on 1 November 2018 and is repealed at the end of 31 October 2021.
Section 3 sets out some definitions for the instrument, including relevant child.
Section 4 provides exemptions for a relevant child, from compliance with subregulation 251 (1) of CAR, and for VAA, from compliance with subregulation 251 (5) of CAR to the extent that it requires VAA to detail a crew member to ensure that a seat belt or safety harness is worn by a relevant child during the times specified in subregulation 251 (1) of CAR that is adjusted to fit the relevant child without slack.
Section 5 provides directions to VAA that relate to the exemption. The directions made under regulation 11.245 of CASR are: that VAA must ensure that a medical practitioner provides a statement regarding the child’s medical condition that includes specified matters, such as the weight of the child and that the child is fit to travel; that VAA must ensure that all staff who may be in contact with the child are informed about the child and his or her medical condition; and that the relevant child sits in an accompanying adult’s lap and wears an approved infant seat belt as a restraint when other passengers must wear seat belts. A note under the section makes clear that these directions cease to be in force on the day that the instrument is repealed.
The directions made under paragraph 215 (3) (a) of CAR are that VAA must ensure that its operations manual includes both procedures for the carriage of relevant children on its aircraft and a copy of the instrument.
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 instrument is expressed to apply to a class of persons as it exempts from a requirement of CAR children who are at least 2 years old who have a serious medical condition. 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
This instrument has been issued at the request of VAA and replaces CASA EX187/15 that was issued for the same purpose. When operating as Virgin Blue and prior to the initial exemption being granted, VAA conducted an initial risk assessment on the safety and corporate implications of carrying children under the circumstances identified, and the risk severity was deemed very low in each case. CASA considers that subsequent operating experience under this exemption has demonstrated that the risk analysis previously undertaken is still valid and applicable. CASA has also consulted with VAA in relation to the exemption. For these reasons, 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 exemptions or directions (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 engages positively with the rights of disabled children and is compatible with human rights.
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 November 2018 and is repealed at the end of 31 October 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX127/18 — Carriage of Children with a Serious Medical Condition (Virgin Australia Airlines) Instrument 2018
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 allows children who have a serious medical condition that prevents them from sitting upright unaided to be carried on aircraft operated by Virgin Australia Airlines Pty Ltd (VAA) without wearing a seat belt of the kind worn by other passengers at those times when the Civil Aviation Regulations 1988 require passengers to wear a seat belt. The instrument includes directions to VAA that are issued in the interests of aviation safety, including that a child must instead be restrained by an approved infant seat belt while sitting in an accompanying adult’s lap.
Human rights implications
This legislative instrument engages positively with the rights of children with disabilities by protecting their right to access air transportation. The risks of exempting these children from wearing a seat belt at specified times is mitigated by the directions given to VAA aimed at protecting their safety.
Conclusion
This legislative instrument promotes the protection of human rights as it enables children with certain disabilities to access air transportation.
Civil Aviation Safety Authority