Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — carriage of children suffering from a serious medical condition
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.
Subsection 98 (5A) of the Act provides that the Regulations may empower CASA to issue instruments in relation to the following:
(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft; or
(b) the airworthiness of, or design standards for, aircraft.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Regulations, including the Civil Aviation Regulations 1988 (CAR 1988), or a provision of the Civil Aviation Orders, in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Under subregulation 251 (1) of CAR 1988, all crew members and passengers must wear seat belts during certain phases of flight. Paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3) reflects this requirement but makes an exception for infants, who are defined as passengers who have not reached their 3rd birthday (subsection 2 of CAO 20.16.3). Infants may be carried on the lap of an adult passenger (paragraph 13.2 of CAO 20.16.3) but must be restrained by an approved infant seat belt to meet the requirements under subregulation 251 (1) of CAR 1988. Some individual exemptions have been issued previously to allow children who are at least 3 years old, who are incapable of sitting upright and who meet certain weight limitations, to be carried on an accompanying adult’s lap while restrained with an approved infant seat belt.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Instrument
The instrument grants a general exemption to Virgin Australia International Airlines Pty Ltd (the operator), and a child to whom the instrument applies, to allow it to carry children suffering from a serious medical condition without their having to occupy their own seat and use an adult seat belt. The child must be over 2 years old, suffer from a serious medical condition that makes it impossible for him or her to sit upright unaided and weigh less than 16 kilograms. An approved infant seat belt must be used to restrain the child while sitting on an accompanying adult’s lap. The conditions relating to the size of the child make it possible for him or her to be carried as mentioned.
Among other conditions, staff of the operator, who may reasonably be expected to come into contact with the child during carriage, must be informed that the child will be carried under this exemption and of the medical condition of the child.
The exemption will apply only to carriage in the operator’s Boeing 737 NG aircraft or Boeing 777 series aircraft.
The instrument also formally repeals a previous exemption on this subject (CASA EX185/12) that expires at the end of July 2015.
Legislative Instruments Act 2003 (the LIA)
Under section 5 of the LIA, subject to sections 6, 7 and 9 of the LIA, a legislative instrument is an instrument in writing that is of a legislative character, and that is or was made in the exercise of a power delegated by the Parliament.
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations. 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. This exemption applies to a class of persons, being the children referred to and is, therefore, a legislative instrument.
As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The operator applied for this exemption. The operator submitted a safety case to support its application for a similar previous exemption, and CASA considers that the risk analysis then undertaken still applies. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 (OBPR id: 14507).
Making and commencement
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 2015. It expires at the end of July 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX132/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — carriage of children suffering from a serious medical condition
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 legislative instrument allows Virgin Australia International Airlines Pty Ltd to carry, subject to certain conditions, children suffering from a serious medical condition without them having to occupy their own seat and use an adult seat belt. The child must be carried in a Boeing 737 NG aircraft or Boeing 777 series aircraft.
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