Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — from life jacket standard (Heli-Aust Whitsundays)
Purpose
The instrument of exemption allows the use of SOS-6167-8 personal flotation devices manufactured by Case Investments Pty Ltd, trading as SOS Marine (SOS-6167-8 PFDs), by persons associated with shore-to-ship transfer operations conducted by Heli-Aust Whitsundays Pty Limited (trading as Gladstone Helicopters, Mackay Helicopters, FNU, and Port Headland Helicopters) (Heli-Aust Whitsundays). Those persons include Heli-Aust Whitsundays, pilots in command of helicopters operated by Heli-Aust Whitsundays, and persons associated with the shore-to-ship transfer operations.
The exemption is required because the SOS‑6167-8 PFDs have not been approved for use by CASA as they include some advanced features that require specialist user training. The SOS‑6167-8 PFDs are life jackets that otherwise meet CASA’s safety standards.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Regulation 252 of the Civil Aviation Regulations 1988 (CAR) empowers CASA to give directions, in relation to emergency systems and equipment to be provided on aircraft, that CASA considers are necessary to safeguard the aircraft and persons on board. It is an offence for a person to contravene a direction. Under subregulation 5 (1) of CAR, where CASA may issue directions under CAR, it may do so in the form of a Civil Aviation Order (CAO).
CAO 20.11 is expressed to be made under regulations 207, 252 and 253 of CAR and deals with emergency and lifesaving equipment and passenger control in emergencies. Among other things, for regulation 252 of CAR, paragraph 5.1.1 of CAO 20.11 requires aircraft to be equipped with 1 life jacket for each occupant when the aircraft is operating over water at a specified distance from land. Paragraph 5.1.6 requires that life jackets must: (a) comply with a standard approved by CASA; (b) be of an inflatable type; and (c) except for an infant life jacket — have a whistle fitted.
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR), for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of a CAO in relation to matters affecting the safe navigation and operation of aircraft. Subregulation 11.170 (3) provides that, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of aviation safety.
Under regulation 11.225 of CASR, 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.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Background
SOS-6167-8 PFDs are life jackets that have an auto-inflation feature and a load rated harness buckle system. The auto-inflation feature can be armed and disarmed by the life jacket user, and the harness buckle system is able to be operated by a trained user but is a more complex system than the harness system approved by CASA. These more complex features mean that the SOS-6167-8 PFD is not approved by CASA (Airworthiness Bulletin 25-027 refers). Other than in relation to the auto-inflation and harness features, however, the SOS-6167-8 PFDs would be of a type and quality that meet CASA emergency equipment standards.
Heli-Aust Whitsundays conducts shore-to-ship transfer operations for marine pilots on behalf of Port Hedland pilots. These operations involve lowering the marine pilot (that is, a ship vessel captain) from a helicopter to the ship in order to allow the marine pilot to guide the ship to shore. Due to the nature of these transfer operations, the marine pilot is required to wear a life jacket at all times.
Heli-Aust Whitsundays has proposed to use SOS-6167-8 PFDs for marine pilots being transferred from shore to ship (SOS-6167-8 PFD transfer operations) because they offer a greater level of safety than CASA-approved life jackets. Accordingly, Heli-Aust Whitsundays has requested that an exemption be issued from the requirement that life jackets installed on aircraft be of a standard approved by CASA (subparagraph 5.1.6 (a) of CAO 20.11, mentioned above).
Instrument
CASA EX41/17 applies to persons associated with the SOS-6167-8 PFD transfer operations, including Heli‑Aust Whitsundays, its flight crew and the marine pilots being transferred. The instrument exempts the persons from compliance with subparagraph 5.1.6 (a) of CAO 20.11, but only in relation to the requirement that the SOS‑6167-8 PFDs must comply with a CASA standard.
A number of conditions on the exemption are set out in the instrument in the interests of aviation safety.
Heli-Aust Whitsundays must ensure that the SOS-6167-8 PFDs have the features specified on the instrument and have passed annual servicing and testing.
Heli-Aust Whitsundays must ensure that marine pilots using the SOS-6167-8 PFDs demonstrate competence in the following matters: deactivation of the auto-inflation feature of the life jackets; recognising the dangers of auto-inflation when trapped under water; operation of the harness system; and helicopter emergency escape procedures. The competencies must be demonstrated on a 6-monthly cycle.
Before commencing a SOS-6167-8 PFD transfer operation, Heli-Aust Whitsundays must ensure the pilot in command of the operation and any marine pilot using the SOS-6167-8 PFD have reviewed and are familiar with the conditions of the instrument. Before commencing a SOS-6167-8 PFD transfer operation, Heli-Aust Whitsundays must also ensure that the pilot in command has, in the preceding 6 months, demonstrated competence to identify whether the auto-inflation feature of the SOS-6167-8 PFD is disarmed, as well as competence to arm and disarm the feature.
It is also a condition on the pilot in command of a SOS-6167-8 PFD transfer operation that the pilot ensures that the auto-inflation function of each SOS-6167-8 PFD is disarmed before commencing the operation.
Heli-Aust Whitsundays must keep records of the demonstration of the competencies required by the instrument, and records of the annual servicing and testing of the SOS-6167-8 PFDs required by the instrument.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that the regulations may empower CASA to issue an instrument in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Relevantly, subsection 98 (5AA) provides that an instrument made under paragraph (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons or a class of aircraft.
The exemption in the instrument is made under regulation 11.160 of CASR, for paragraph 98 (5A) (a) of the Act, and is expressed to apply to a range of persons associated with SOS-6167-8 PFD transfer operations. Accordingly, the instrument is registered as a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Heli-Aust Whitsundays has requested this instrument and has provided CASA with a satisfactory safety case. It is of beneficial effect to the safety of the SOS-6167-8 PFD transfer operations and CASA will consider issuing similar exemptions to other operators should there be a safety need. In these circumstances, it is CASA’s view that no further consultation under section 17 of the LA is necessary or appropriate.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on the day of registration and expires at the end of 29 February 2020.
[Instrument number CASA EX41/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — from life jacket standard (Heli-Aust Whitsundays)
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 instrument of exemption allows the use of SOS-6167-8 personal flotation devices manufactured by Case Investments Pty Ltd, trading as SOS Marine (SOS-6167-8 PFDs), by persons associated with shore-to-ship transfer operations conducted by Heli-Aust Whitsundays Pty Limited (trading as Gladstone Helicopters, Mackay Helicopters, FNU, and Port Headland Helicopters) (Heli-Aust Whitsundays). Those persons include Heli-Aust Whitsundays, pilots in command of helicopters operated by Heli-Aust Whitsundays, and persons associated with the shore-to-ship transfer operations.
The exemption is required because the SOS‑6167-8 PFDs have not been approved for use by CASA as they include some advanced features that require specialist user training. The SOS‑6167-8 PFDs are life jackets that otherwise meet CASA’s safety standards.
The instrument is subject to conditions imposed by CASA in the interests of aviation safety.
Human rights implications
This legislative instrument engages with the right to safe working conditions.
The right is positively engaged because the SOS-6167-8 PFD provides a higher level of safety for appropriately trained users than life jackets that otherwise meet the CASA standard.
Conclusion
This legislative instrument is compatible with human rights as it promotes the right to safe working conditions.
Civil Aviation Safety Authority