Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — for cabin crew member to use passenger seat
Legislation — cabin crew seats
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation.
Under subregulations 90.125 (1) and (2) of the Civil Aviation Safety Regulations 1998 (CASR 1998), the registered operator of an aircraft to which Subpart 90.B of CASR 1998 applies, commits a strict liability offence if he or she operates the aircraft, or permits it to be operated, and while the aircraft is operating, a seat or any related equipment that is provided for a cabin crew member does not meet the standard for cabin crew seats and related equipment set out in the Part 90 Manual of Standards (Part 90 MOS).
Aircraft to which Subpart 90.B of CASR 1998 applies are aircraft other than balloons, airships, sailplanes, powered sailplanes and aircraft with certain special certificates of airworthiness, experimental certificates, special flight permits and provisional certificates of airworthiness.
Legislation — permissible unserviceability
Under subregulation 37 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may approve a defect in, or damage to, an Australian aircraft, or any aircraft included in a class of aircraft, as permissible unserviceability (PUS) for the aircraft. Under subregulation 37 (2) of CAR 1988, CASA may direct that the use of the aircraft, subject to the PUS, is subject to certain conditions.
Legislation — exemption and repeal
Subregulation 11.160 (1) of CASR 1998 provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations 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), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.
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.
Background
From time to time before regulation 90.125 of CASR 1998 took effect on 1 December 2010, CASA approved defective cabin crew seats as a PUS. Alternative seating arrangements were made for the relevant cabin crew.
However, the effect of regulation 90.125 is that an offence is now committed if a cabin crew seat and related equipment complying with the Part 90 MOS is not provided to each cabin crew member while the aircraft is operating.
As a matter of practice, in circumstances where, for the short duration of a PUS, a cabin crew seat is not provided, the relevant cabin crew can be seated in a fully functional passenger seat with an acceptable level of aviation safety.
The purpose of CASA EX16/11, issued on 9 February 2011, was to exempt the operator of an aircraft from compliance with the standards for cabin crew seats and related equipment under regulation 90.125 of CASR 1998 and the Part 90 MOS. The exemption only applies to an operator if there is a non-compliant cabin crew seat or related equipment in an aircraft being operated and there is no alternative seat or related equipment provided for the cabin crew member that can comply with the standards.
CASA EX16/11 was replaced by CASA EX06/13, which will expire at the end of January 2015.
Instrument
CASA EX15/15 repeals CASA EX06/13 and reissues the exemption in the same terms, with the new expiry date being the end of December 2017. CASA EX15/15 exempts operators with a non-compliant cabin crew seat from the standards for the provision of such seats to cabin crew, subject to conditions including that the cabin crew member is located in a suitable front or back-facing passenger seat and the passenger seat provides, as far as practicable, a direct view of the cabin area for which the cabin crew member is individually responsible.
Legislative Instruments Act 2003 (the LIA)
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the regulations or the Civil Aviation Orders. 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. The exemption applies to a class of operators. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The instrument is a reissue of an exemption that has continued since February 2011. CASA’s policy on the use of passenger seating by cabin crew has not changed and the instrument is beneficial to industry. 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 exemption commences on the day of registration and expires at the end of December 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX15/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — for cabin crew member to use passenger seat
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 exempts operators with a non-compliant cabin crew seat from the standards for the provision of such seats to cabin crew, provided the seat is the subject of a permissible unserviceability and the cabin crew member is located in a suitable front or back-facing passenger seat.
The exemption is subject to conditions that CASA considers necessary in the interests of aviation safety.
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