CASA EX185/12 - Exemption - carriage of children suffering from a serious medical condition

Overview

The Civil Aviation Safety Regulations 1998 (CASR 1998) were enacted to ensure the safety and regulation of civil aviation in Australia, establishing a comprehensive framework for aviation operations. One specific problem the legislation aimed to address is the carriage of children with serious medical conditions who cannot sit upright unaided. The Civil Aviation Safety Authority (CASA) has the authority to grant exemptions from certain regulations under the Civil Aviation Act 1988. Pursuant to this authority, CASA issued a legislative instrument, F2012L02426, granting a general exemption to Virgin Australia International Airlines Pty Ltd, allowing them to carry children over 2 years old, who are incapable of sitting upright unaided due to a serious medical condition and weigh less than 16 kilograms, without requiring them to occupy their own seat and use an adult seat belt. This exemption applies to specific aircraft types, Boeing 737 NG and Boeing 777 series, and requires that the children be restrained using an approved infant seat belt while on an accompanying adult's lap. The exemption also mandates that relevant staff be informed of the child's condition. The exemption is a legislative instrument under the Legislative Instruments Act and is compatible with human rights and freedoms, though no consultation was undertaken as the operator provided a safety case. The exemption is set to expire at the end of July 2015.

Scope and Application

The Civil Aviation Safety Regulations 1998, under the authority of the Civil Aviation Act 1988, provide the framework for ensuring safety in aviation operations within Australia. Specifically, regulation 11.160 of the Civil Aviation Safety Regulations 1998 empowers the Civil Aviation Safety Authority (CASA) to exempt certain aircraft or persons from specified provisions of the Civil Aviation Regulations 1988 in specific circumstances. This includes a general exemption granted to Virgin Australia International Airlines Pty Ltd for the carriage of children suffering from serious medical conditions on their Boeing 737 NG and Boeing 777 series aircraft. This exemption allows children over the age of 2, who cannot sit upright unaided due to their medical condition, and who weigh less than 16 kilograms, to be carried on an accompanying adult’s lap while restrained with an approved infant seat belt, rather than requiring them to occupy their own seat and use an adult seat belt. This exemption applies to a class of persons and a class of aircraft, making it a legislative instrument under the Legislative Instruments Act. The exemption does not engage any of the human rights or freedoms recognised in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011 and replaces an earlier exemption issued to the same operator but includes an additional aircraft type. The exemption is effective from the day after its registration and will cease to have effect by the end of 31 July 2015.

Key Provisions

The Civil Aviation Safety Regulations 1998, under the authority of the Civil Aviation Act 1988, contain specific provisions that govern the carriage of children suffering from serious medical conditions. Regulation 11.160 of the CASR 1998 provides the Civil Aviation Safety Authority (CASA) with the power to exempt certain aircraft or types of aircraft, and the persons involved in their operation, from specific requirements outlined in the Civil Aviation Regulations 1998 (CAR 1998). This regulation permits the exemption of children from the usual requirements to occupy their own seat and use an adult seat belt, provided they meet certain criteria. Under subregulation 251(1) of CAR 1998, all crew members and passengers must wear seat belts during specific phases of flight, with an exception for infants under three years of age. This requirement is detailed in paragraph 3.1 of Civil Aviation Order 20.16.3 (CAO 20.16.3), which also permits infants to be carried on the lap of an adult passenger if they are restrained by an approved infant seat belt. This exemption applies to Virgin Australia International Airlines Pty Ltd, allowing them to carry children over two years old who suffer from a serious medical condition that makes it impossible for them to sit upright unaided and who weigh less than 16 kilograms. Such children can be carried on the lap of an accompanying adult while restrained by an approved infant seat belt. The exemption also mandates that staff who may reasonably be expected to come into contact with the child during carriage must be informed of the child's medical condition and the exemption under which they are being carried. This exemption is limited to the operator’s Boeing 737 NG and Boeing 777 series aircraft. The exemption is made under the authority of subsection 98(5A) of the Civil Aviation Act 1988, which empowers the Governor-General to make regulations. It is considered a legislative instrument under subsection 98(5AA) of the Act because it applies to a class of persons (children with serious medical conditions) and a class of aircraft. This exemption is compatible with the human rights and freedoms as recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as it does not engage any of the applicable rights or freedoms. Although consultation under section 17 of the Legislative Instruments Act 2003 was not undertaken, the operator submitted a safety case to support its application. This exemption replaces a previous exemption issued to the same operator but includes an additional aircraft type. The exemption comes into effect the day after registration and will cease to have effect at the end of 31 July 2015. The instrument has been made by a delegate of CASA under the delegation of authority specified in subregulation 11.260(1) of CASR 1998.