Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX16/18 — Life Jacket Standard (Heli‑Aust Whitsundays Transfer Operations) Exemption 2018
Purpose
The instrument of exemption would repeal and reissue CASA EX41/17, adding an additional model of personal flotation device and an additional condition, as well as making some related amendments. Therefore, the instrument of exemption would:
(a) continue to allow the use of SOS‑6167‑8 personal flotation devices manufactured by Case Investments Pty Ltd, trading as S O S Marine (SOS‑6167‑8 PFDs), during shore‑to‑ship transfer operations conducted by Heli-Aust Whitsundays Pty Limited, registered under the business names of FNU, Gladstone Helicopters, Mackay Helicopters, and Port Headland Helicopters (the exempted operator); and
(b) allow an additional model of personal flotation device manufactured by the same manufacturer (SOS‑6167‑15 PFDs) to be used during transfer operations conducted by the exempted operator.
The exemption is required because the SOS‑6167‑8 PFDs and the SOS‑6167‑15 PFDs have not been approved for use by CASA as they include advanced features that require specialist user knowledge, procedures and training — an automatic inflation feature and buckles for a deck tether harness. The SOS‑6167‑8 PFDs and SOS‑6167‑15 PFDs 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 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 the Civil Aviation Regulations 1988 (CAR).
Subregulation 252 (1) of CAR gives CASA discretionary power to make directions in relation to the provision in Australian aircraft of emergency systems and equipment, and life‑saving equipment, that CASA considers are necessary to safeguard the aircraft and persons on board. The combined effect of subregulations 252 (1A) and (1B) of CAR is that it is an offence for a person to contravene a direction. Also, the combined effect of paragraph 5 (1) (a) and subregulation 5 (1A) of CAR is that, if CASA is empowered to issue a direction under CAR, it may do so in, relevantly, a Civil Aviation Order (CAO).
CAO 20.11, which relates to emergency and lifesaving equipment and passenger control in emergencies, is expressed to be made under subregulations 207 (2), 252 (1) and 253 (5) of CAR. Subsection 5 and paragraph 5.1 of CAO 20.11 relate to, respectively, flotation equipment for overwater flights and life jackets. Subparagraph 5.1.6 (a) of CAO 20.11 requires that life jackets must comply with a standard approved by CASA.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. 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 of 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 11.175 (4) of CASR, in deciding whether to renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 of CASR provides that CASA may impose any condition on an exemption under Subpart 11.F that is “necessary in the interests of the safety of air navigation”. Under regulation 11.210 of CASR, it is a strict liability offence not to comply with an obligation imposed by a condition.
Regulation 11.225 of CASR requires an exemption under Subpart 11.F to be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
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
Heli‑Aust Whitsundays Pty Limited (the exempted operator) conducts shore‑to‑ship transfer operations for marine pilots. Those transfer operations involve lowering the marine pilot from a helicopter to the ship in order to allow the marine pilot to guide the ship to shore. Due to the nature of those transfer operations, the marine pilot is required to wear a life jacket at all times.
On 29 March 2017, CASA made instrument CASA EX41/17, granting an initial exemption to the exempted operator and, therefore, allowing the use of SOS‑6167‑8 PFDs during shore‑to‑ship transfer operations conducted by the exempted operator. CASA EX41/17 was registered on the Federal Register of Legislation on 30 March 2017 (F2017L00352 refers), commenced on the same date, and will be repealed on 29 February 2020.
As the Explanatory Statement for CASA EX41/17 mentions, CASA EX41/17 was issued after the exempted operator provided CASA with a satisfactory safety case and applied for an exemption that would allow the use of SOS‑6167‑8 PFDs during transfer operations. That Explanatory Statement also mentions that the exempted operator applied for the exemption because SOS‑6167‑8 PFDs offer a greater level of safety than life jackets approved by CASA. The exempted operator has applied to CASA for the exemption to include SOS‑6167‑15 PFDs.
SOS‑6167‑8 PFDs and SOS‑6167‑15 PFDs (SOS PFDs) are life jackets that have an auto‑inflation feature and a load-rated harness buckle system. The auto‑inflation feature can be armed and disarmed by the life jacket user. While a trained user can operate the harness buckle system, its operation requires specific knowledge, procedures, and training. In addition, it is a more complex system than the harness system approved by CASA. Those more complex features and requirements mean that the SOS PDSs are not approved by CASA. However, apart from the auto‑inflation and harness features, the SOS PFDs are of a type and quality that meet CASA emergency equipment standards.
In order for the exempted operator to use the SOS PFDs during transfer operations, it is necessary to continue the exemption for SOS‑6167‑8 PFDs, and to include SOS‑6167‑15 PFDs within the scope of the exemption, because CASA has not approved the harness buckle system mentioned in the preceding paragraph, and, therefore, has not approved those SOS PFDs for use.
CASA has assessed the exempted operator’s request to include SOS‑6167‑15 PFDs within the scope of the previously granted exemption and is satisfied that taking that action would have no adverse impact on the safety of the exempted operator’s transfer operations.
Instrument
Section 1 names the instrument in a way that allows the instrument to be identified by its name alone, while retaining the ability to search for the instrument using the Federal Register of Legislation using the CASA instrument number.
Under section 2, the instrument commences on the day it is registered on the Federal Register of Legislation and is repealed at the end of 31 January 2021.
In accordance with subsection 33 (3) of the Acts Interpretation Act 1901, section 3 of the instrument repeals CASA EX41/17 (F2017L00352 refers), which would no longer be required after the instrument commences.
Section 4 of the instrument contains definitions.
Apart from expressly including the exempted operator, the definition of exempted person is expressed to mean a person who fits, carries or uses an SOS PFD during a transfer operation. That definition uses the expression “a person … who fits, carries or uses” an SOS PFD for consistency with the expression of subregulation 207 (3) of CAR. The definition intends persons of that kind to include (but not necessarily be limited to) the pilot in command of a transfer operation, and the marine pilots being transferred during a transfer operation.
Subsection 5 (1) of the instrument exempts the exempted operator from compliance with subregulation 207 (2) of CAR, to the extent that the subregulation requires an Australian aircraft used during a transfer operation to carry equipment, including emergency equipment, that CASA has approved and directed.
Subsections 5 (2) and (3) of the instrument exempt an exempted person from compliance with:
(a) subregulation 207 (3) of CAR, to the extent that the subregulation requires the exempted person to fit, carry or use an SOS PFD only if it complies with a standard mentioned in subparagraph 5.1.6 (a) of Civil Aviation Order 20.11; and
(b) subparagraph 5.1.6 (a) of Civil Aviation Order 20.11, to the extent that the subparagraph requires a life jacket worn by a marine pilot to comply with a standard approved by CASA.
Subsection 5 (4) of the instrument makes the exemptions in subsections 5 (1), (2) and (3) subject to the conditions mentioned in section 6.
Section 6 of the instrument sets out the conditions on the exempted operator to which the exemptions in subsections 5 (1), (2) and (3) are subject.
Subsections 6 (1) to (4) of the instrument revise the expression of the conditions included in subsections 5 (1) to (4) of CASA EX41/17, so that they retain within their scope SOS‑6167‑8 PFDs and include within their scope SOS‑6167‑15 PFDs.
Paragraph 6 (3) (a) of the instrument is a new condition. Under that condition, the exempted operator must, before conducting a transfer operation, ensure that each marine pilot who will wear an SOS PFD during the transfer operation weighs 60 kg or greater. That condition is included because there is a manufacturer’s requirement for a person wearing each model of SOS PFD to weigh a minimum of 60 kg.
Subsection 6 (5) of the instrument sets out conditions related to record keeping that the exempted operator must comply with.
Section 7 imposes a condition on the pilot in command of a helicopter used during a transfer operation, to ensure that the auto‑inflation function of all SOS PFDs on board the helicopter is deactivated before each flight.
Legislation Act 2003 (the LA)
Paragraph 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument repeals instrument CASA EX41/17 (F2017L00352 refers) that was registered as a legislative instrument. Therefore, this instrument is also a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
This instrument replaces a previous instrument (CASA EX41/17) which is expressed to repeal at the end of 29 February 2020 and is made in substantially similar terms. The exemption is of beneficial effect to the safety of the transfer operations and CASA will consider issuing similar exemptions to other operators should there be a safety need. The exempted operator has requested this instrument and has provided CASA with a satisfactory safety case. In those circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LA.
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
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 right to safe working conditions is positively engaged because the SOS PFDs provide a higher level of safety for appropriately trained users than life jackets that otherwise meet the CASA standard.
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 the day of registration and is repealed at the end of 31 January 2021.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX16/18 — Life Jacket Standard (Heli‑Aust Whitsundays Transfer Operations) Exemption 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
The instrument of exemption allows the use of particular models of personal flotation devices (SOS PFDs), not approved by CASA, during transfer operations conducted by Heli-Aust Whitsundays Pty Limited, registered under the business names of FNU, Gladstone Helicopters, Mackay Helicopters, and Port Headland Helicopters. The SOS PFDs have not been approved for use by CASA because they include some advanced features that require specialist user knowledge, procedures and training. The SOS PFDs are life jackets that otherwise meet CASA’s safety standards.
The instrument of exemption is subject to conditions imposed by CASA in the interests of aviation safety.
Human rights implications
This legislative instrument engages with the right to safe working conditions.
The right is positively engaged because the SOS PFDs provide a higher level of safety for appropriately trained users than life jackets that otherwise meet the CASA standard.
Conclusion
This legislative instrument is compatible with human rights because it promotes the right to safe working conditions.
Civil Aviation Safety Authority