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 empowers the Governor-General to make Regulations.
Under subregulation 308 (1) of the Civil Aviation Regulations 1988 (CAR 1988), CASA may, in relation to a particular aircraft or specified type or category of aircraft, exempt the aircraft, or persons associated with the operation of the aircraft, from compliance with specified provisions of CAR 1988.
Subregulation 308 (3) of CAR 1988 provides that such an exemption is subject to the aircraft complying with any conditions specified by CASA as being necessary in the interests of safety.
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 third 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.
This instrument grants a general exemption to Virgin Blue Airlines Pty Limited, Aviation Reference Number 567591 (the operator), 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 737-700/800 or Embraer 170/190 aircraft.
Legislative Instruments Act
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. Subregulation 308 (4) of CAR 1988 declares such an exemption to be a disallowable instrument. 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.
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 for this exemption. The application included identification, evaluation and analysis of risks, all of which fall within an acceptable level. Any other operator who makes a similar application would be eligible for a similar exemption.
The instrument commences on the day after it is registered and stops having effect at the end of 30 September 2009.
The instrument has been made by the Deputy Chief Executive Officer, Strategy and Support, a delegate of CASA, under subregulation 7 (1) of CAR 1988.
[Instrument number CASA EX40/07]