Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — carriage of child (Regional Express)
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in relation to the safety of air navigation.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, for the purpose of ensuring the safety of air navigation, give directions with respect to the method of loading of persons and goods (including fuel) on aircraft. Subregulation 235 (7A) of CAR 1988 contains an offence for failing to comply with a direction. Subregulation 235 (8) of CAR 1988 provides that it is an offence for the pilot in command of an aircraft to allow the aircraft to take off or land if a direction about the loading of the aircraft has not been complied with.
Civil Aviation Order 20.16.3 (CAO 20.16.3) is made for the purposes of regulation 235 of CAR 1988. Paragraph 3.1 of CAO 20.16.3 requires each passenger to occupy a seat of an approved type at certain times (e.g. during take-off and landing). One exception is for infants carried in accordance with subsection 13 of CAO 20.16.3. Subsection 2 of CAO 20.16.3 defines an infant as a passenger who has not reached his or her third birthday. Subsection 13 of CAO 20.16.3 provides that an infant may be carried on the lap of an adult passenger, and sets out requirements that apply when doing so.
A passenger (the child) of Regional Express Pty Ltd, trading as Regional Express (the operator) will shortly turn 3 years old. The child has a medical condition, one effect of which is that she is significantly smaller than other children of her age. The operator has applied for an exemption to permit the child to be carried on the lap of an adult passenger, in the same way as an infant.
Exemption
The instrument is made under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998). Subregulation 11.160 (1) of CASR 1998 allows CASA to grant an exemption from compliance with a provision of CAR 1988, CASR 1998 or the Civil Aviation Orders (the CAOs) in relation to a matter mentioned in subsection 98 (5A) of the Act. Paragraph 98 (5A) (a) of the Act provides that the regulations may empower CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Under subregulation 11.170 (3) of CASR 1998, when granting an exemption, CASA must regard as paramount the preservation of a level of aviation safety that is at least acceptable. 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 11.210 of CASR 1998, it is an offence to fail to comply with a condition of an exemption. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
The instrument exempts:
- the child from compliance with paragraph 3.1 of CAO 20.16.3 (the requirement to occupy a seat during take-off and landing etc.)
- the child, the child’s parents and the operator from compliance with subregulation 235 (7A) of CAR 1988 (the requirement not to contravene a CASA direction under subregulation 235 (7), i.e. CAO 20.16.3), but only to the extent related to the child occupying a seat in accordance with paragraph 3.1 of CAO 20.16.3
- the pilot in command of the aircraft from compliance with subregulation 235 (8) of CAR 1988 (the requirement not to take off or land if a direction under regulation 235, i.e. CAO 20.16.3, has not been complied with), but only to the extent related to the child occupying a seat in accordance with paragraph 3.1 of CAO 20.16.3.
The exemptions are subject to a number of conditions, in particular the following:
- the child must be carried in the arms or on the lap of an adult passenger at certain times, such as during take-off and landing
- an approved infant seat belt must be used to restrain the child while being carried in the arms or on the lap of an adult passenger
- conditions based on those that apply to infants carried in the arms or on the lap of an adult passenger under subsection 13 of CAO 20.16.3, including that the child must not be carried in an exit seat
- relevant staff must be informed of the exemption.
Legislative Instruments Act 2003 (the LIA)
This instrument affects the operation of paragraph 3.1 of CAO 20.16.3. Under regulation 5A of CAR 1988, if CASA has issued a direction in the form of a CAO and later issues another direction or an exemption which affects the operation of anything in the CAO, the later instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Section 6 of the LIA provides that such an instrument made in the exercise of a power delegated by the Parliament before 1 January 2005 is a legislative instrument.
As a legislative instrument, this instrument is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
The operator applied for the exemption in consultation with the child’s parents. The child’s doctor has provided a medical certificate. CASA considers that no further consultation is necessary or appropriate at this stage.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the exemption 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
A Statement of Compatibility with Human Rights is at Attachment 1.
Commencement and making
The instrument commences on the day after registration and expires at the end of September 2018. However, the instrument specifies that it only applies while the child weighs less than 16 kilograms, to address the situation where, before the instrument expires, the child grows to such a degree that it is no longer appropriate she be carried on an adult’s lap.
The instrument has been issued by a delegate of CASA under a delegation instrument made under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX178/15]
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 child (Regional Express)
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
Under Civil Aviation Order 20.16.3, each aircraft passenger must occupy a seat at certain times (e.g. during take-off and landing). There is an exception allowing children up to 3 years to be carried on the lap of an adult passenger. One passenger of Regional Express Pty Ltd, trading as Regional Express, who will shortly turn 3 years old, has a medical condition affecting her size. The instrument would allow the child to be carried on the lap of an adult passenger, in the same way as an infant, while she weighs less than 16 kilograms. An approved infant seat belt must be used to restrain the child while carried in the arms or on the lap of an adult passenger. Relevant staff must be informed of the exemption.
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