Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — carriage of children suffering from a serious medical condition (Virgin Australia)
Legislation
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. Subsection 98 (5A) of the Act empowers CASA to issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft.
Under subregulation 251 (1) of the Civil Aviation Regulations 1988 (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 meet certain weight limitations, to be carried on an accompanying adult’s lap while restrained with an approved infant seat belt.
Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the Civil Aviation Orders (the CAOs). 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
In mid-2014, Virgin Australia Airlines Pty Ltd (the operator) was granted an exemption (CASA EX46/14 refers) from subregulation 251 (1) of CAR 1988 that allowed the operator to carry children over 2 years of age who were: under 16 kilograms in weight; and who suffered from a serious medical condition that prevented him or her from sitting upright unaided, in the operator’s B737, A330 and E190 type aircraft. The operator has asked CASA to reissue the exemption so that it also covers ATR 72 type aircraft in the operator’s fleet. CASA has assessed the operator’s safety case and agrees that the exemption may be reissued with minimal impact on aviation safety.
Instrument
CASA EX187/15 is an instrument that repeals and replaces CASA EX46/14. There are 2 key changes made in the new instrument. Instead of specifying the aircraft types in the operator’s fleet that are able to take advantage of the exemption, the exemption has been expanded to allow carriage of a child to whom the exemption applies on any aircraft operated by the operator in accordance with the operator’s operations manual. This gives the operator flexibility to change or update its fleet without seeking a reissue of the exemption. The second change is that a copy of the instrument must be included in the operator’s operations manual.
Other conditions in CASA EX46/14, such as the requirement for a qualified medical practitioner’s statement regarding the child’s medical condition, and informing cabin crew about the child and his or her medical condition, remain applicable under CASA EX187/15. The child must be restrained by an approved infant seat belt while sitting on an accompanying adult’s lap.
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 CAOs. 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. The exemption applies to a class of persons, being children over 2 years old who are suffering from a serious medical condition. 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.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Consultation
The reissue of the exemption has been requested by the operator. The instrument repeals and replaces a previous instrument, CASA EX46/14, issued to the operator for the same purpose. In these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake any further consultation under section 17 of the LIA.
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 instrument commences on the day of registration, and expires at the end of October 2018, as if it had been repealed by another instrument.
[Instrument number CASA EX187/15]
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 children suffering from a serious medical condition (Virgin Australia)
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 legislative instrument allows children suffering from a serious medical condition to wear an infant seat belt instead of a standard seat belt on aircraft operated by Virgin Australia Airlines Pty Ltd. The purpose of the instrument is to enable children who meet specified criteria, including being unable to sit upright unaided, to be carried on aircraft operated by the operator.
The instrument is subject to conditions that are 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