EXPLANATORY STATEMENT
CIVIL AVIATION ACT 1988
CIVIL AVIATION REGULATIONS
PERMISSION AND EXEMPTION — DANGEROUS GOODS AND LOOSE ARTICLES
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides that the Governor-General may make regulations for the purposes of the Act and in the interests of the safety of air navigation.
Section 23 of the Act provides that an aircraft must not carry, and a person must not carry on board, dangerous goods except in accordance with either the regulations or CASA’s permission. Part 92 of the Civil Aviation Safety Regulations 1998 permits the carriage of dangerous goods in accordance with the ICAO Technical Instructions for the Safe Transport of Dangerous Goods (ICAO TIs). The ICAO TIs permit the carriage of ammunition as checked baggage only (i.e in the hold) and not on the person nor in the passenger compartment.
Subregulation 235 (7) of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASA may, for the purposes of ensuring the safety of air navigation, give directions with respect to the method of loading persons and goods on aircraft. Subregulation 235 (7A) makes it an offence to fail to comply with a direction.
Subsection 9 of Civil Aviation Order 20.16.3 (CAO 20.16.3) contains directions for stowage of loose articles in the cabin of an aircraft. Paragraph 9.1 requires loose articles, including equipment and personal effects of crew members and passengers, to be stowed. Paragraph 9.3 requires proper stowage of solid items when seat belts are required to be worn.
Subregulation 308 (1) of CAR 1988 provides that CASA may exempt aircraft, or persons in, on, or otherwise associated with the operation of, the aircraft, from compliance with specified provisions of CAR 1988.
Subregulation 308 (2) provides that before making an exemption, CASA must take into account any relevant considerations relating to the interests of safety.
Subregulation 308 (3) provides that CASA may make an exemption subject to any condition specified in the exemption as being necessary in the interests of safety.
Bristow Helicopters Australia Pty Ltd (the operator) is involved in a commercial operation under contract with the Department of Defence to use AS 332 Super Puma helicopters to support personnel of the Regional Assistance Mission to the Solomon Islands, the Australian Defence Force, an Australian State Police Force or the Australian Federal Police in the Solomon Islands.
Military and police passengers (personnel) carry their unloaded weapons with them, held between their knees in the normal military manner. Thus, the weapons are, in effect, loose articles. In addition, the personnel may be required in an emergency to have ammunition more readily available after landing than would be the case if it were in the storage compartments of the aircraft.
Without a permission under the Act to carry ammunition in the cabin of the aircraft, and an exemption from compliance with the relevant paragraphs of CAO 20.16.3 about loose articles, this modus operandi and contingency planning would not be lawful.
For Solomon Islands operations, therefore, the instrument permits the operator and the personnel to carry the ammunition of the personnel in the cabin. It also exempts the operator and the personnel from compliance with the directions under subregulation 235 (7A) of CAR 1988 as set out in paragraphs 9.1 and 9.3 of CAO 20.16.3 in relation to the carriage of weapons as loose articles in the cabin.
There are conditions to ensure safety. All weapons must be unloaded, and confirmed to be so by the officer in command, prior to embarkation for the flight. When ammunition is to be carried on the person of the personnel, it must be secured in their webbing in the approved manner, and confirmed to be so secured by the officer in command, prior to embarkation for the flight. The operator’s operations manual must include a standard operating procedure (SOP) to be followed in these operations, including emergency drills. Personnel must be briefed on the SOP before each flight.
Legislative Instruments Act
Subregulation 308 (4) of CAR 1988 declares an exemption to be a disallowable instrument. Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation under section 17 of the LIA has not been undertaken in this case. The instrument is required for the safety and security of personnel.
The instrument comes into effect on 1 August 2005. It will be registered on the Federal Register of Legislative Instruments. It stops having effect at the earlier of either the end of July 2006 or the operator ceasing to carry out Solomon Islands operations.
The exemption has been made by the Deputy Chief Executive and Chief Operating Officer, a delegate of CASA, in accordance with subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX36/05]