CASA EX187/15 - Exemption — carriage of children suffering from a serious medical condition (Virgin Australia)

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Legislation au F2015L01813 Not in force Legislative Instrument

Legislation content

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

Overview

The Civil Aviation Safety Regulations 1998, amended through the legislative instrument F2015L01813, were enacted to address a specific safety concern related to the carriage of children with serious medical conditions on Virgin Australia flights. This instrument allows children over the age of 2 who suffer from a serious medical condition and cannot sit upright unaided to be carried on any aircraft operated by Virgin Australia while being restrained with an approved infant seat belt, instead of requiring them to wear a standard seat belt. This change was made following an assessment by the Civil Aviation Safety Authority (CASA) that found the exemption would have minimal impact on aviation safety. The instrument, which repeals and replaces a previous exemption CASA EX46/14, is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003. The policy objective is to ensure the safety of air navigation while accommodating the needs of children with serious medical conditions. The instrument was made by a delegate of CASA under the power delegated by the Civil Aviation Safety Regulations 1998, and it commenced on the day of its registration, expiring at the end of October 2018. The exemption is subject to a Statement of Compatibility with Human Rights, which confirms that the legislative instrument is compatible with human rights as it does not raise any human rights issues.

Scope and Application

The Civil Aviation Safety Regulations 1998, under subregulation 11.160(1), provide that the Civil Aviation Safety Authority (CASA) may grant an exemption from a provision of the Civil Aviation Orders (the CAOs) as per subsection 98(5A) of the Civil Aviation Act 1988. This authority extends to granting exemptions to a person or a class of persons, defined by specific characteristics. In the case of CASA EX187/15, the exemption applies to children over 2 years old who suffer from a serious medical condition that prevents them from sitting upright unaided and who weigh less than 16 kilograms. The exemption allows these children to be carried on any aircraft operated by Virgin Australia Airlines Pty Ltd, provided they are restrained by an approved infant seat belt while sitting on an accompanying adult’s lap. This exemption, which is a legislative instrument, must be tabled and can be disallowed by Parliament under sections 38 and 42 of the Legislative Instruments Act 2003. The exemption is effective from the day of registration and expires at the end of October 2018. The instrument has been reissued to provide greater flexibility to Virgin Australia Airlines Pty Ltd and includes the requirement for a medical practitioner’s statement and crew notification regarding the child's medical condition. The instrument has been deemed compatible with human rights as it does not engage any applicable rights or freedoms.

Key Provisions

The Civil Aviation Safety Regulations 1998 (CASR 1998) and associated Civil Aviation Orders (CAOs) set out the regulatory framework for the safe operation of aircraft in Australia. Under section 98 of the Civil Aviation Act 1988 (the Act), the Civil Aviation Safety Authority (CASA) is empowered to make regulations and orders to ensure the safety of air navigation, and can issue exemptions from these provisions where necessary. Subregulation 11.160(1) of CASR 1998 provides that CASA may grant an exemption from a provision of the CAOs, while subregulation 11.205(1) allows CASA to impose conditions on such exemptions to ensure aviation safety. Regulation 11.225 of CASR 1998 mandates that any exemption granted must be published on the Internet, and under subregulation 11.230(1), an exemption generally ceases 3 years after its commencement, unless otherwise specified. The obligations imposed by the Civil Aviation Regulations 1988 (CAR 1988) and CAO 20.16.3 generally require all crew members and passengers to wear seat belts during certain phases of flight, with exceptions for infants under the age of 3 years. However, under specific exemptions, children over 2 years of age who suffer from serious medical conditions preventing them from sitting upright unaided may be carried on an accompanying adult's lap, provided they are restrained with an approved infant seat belt. Other obligations include the need for a qualified medical practitioner’s statement regarding the child’s medical condition, and informing cabin crew about the child and their medical condition. Failure to comply with the conditions of the exemption or the underlying regulations may result in various civil or criminal penalties, depending on the severity and intent behind the breach. CASA retains the authority to enforce compliance through administrative, civil, or criminal actions. The specific penalties for breaches of aviation safety regulations are detailed in the relevant sections of the Civil Aviation Act 1988 and the Civil Aviation Safety Regulations 1998, which can include fines and imprisonment for serious violations.

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Legislative Instrument
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.