Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — carriage of children suffering from a serious medical condition
Legislation
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.
Exemption power
Under regulation 11.160 of the Civil Aviation Safety Regulations 1998 (CASR 1998), CASA may, in relation to a particular aircraft, or a specified type or category of aircraft, exempt the aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of the Civil Aviation Regulations 1988 (CAR 1988).
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.
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.
Legislative Instruments Act
Exemptions issued under regulation 11.160 of CASR 1998 are issued under subsection 98 (5A) of the Act. Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of persons, being the children referred to, and a class of aircraft, so is a legislative instrument.
Compatibility with human rights and freedoms
This 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. The instrument does not engage any of the applicable rights or freedoms.
Consultation
Consultation under section 17 of the LIA has not been undertaken in this case. The operator submitted a safety case to support its application. The exemption replaces an exemption (CASA EX132/12) issued to the same operator but adds an additional aircraft type.
Commencement and making
The instrument commences on the day after registration and stops having effect at the end of 31 July 2015.
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX185/12]